Citation Nr: 21001060 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 09-20 303 DATE: January 6, 2021 ORDER An initial rating of 50 percent, for posttraumatic stress disorder (PTSD), from April 25, 2008 to February 3, 2015, is granted, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 70 percent, for PTSD, from February 3, 2015, forward, is denied. REMANDED An effective date prior to February 3, 2015, for the assignment of a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From April 25, 2008 to February 3, 2015, the weight of the evidence supports finding that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity, but not worse. 2. At no time has the Veteran’s PTSD been shown to cause total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent for PTSD, from April 25, 2008 to February 3, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 70 percent for PTSD, from February 3, 2015, forward, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to December 1979. He provided testimony before the undersigned Veterans Law Judge (VLJ) at a June 2016 Board hearing. A complete transcript is of record. VA received the Veteran’s service connection claim for PTSD on April 25, 2008. A March 2009 rating decision denied the Veteran’s claim. The Veteran disagreed with that decision and a subsequent June 2009 rating decision granted the claim and assigned a 30 percent rating, effective October 28, 2008, the date VA received correspondence from the Veteran’s social worker, which in part, established the criteria for service connection for PTSD. The Veteran disagreed with the assigned rating and a subsequent February 2015 rating decision assigned a 70 percent rating for his PTSD, effective February 3, 2015, the date of a VA examination. The Veteran continued to disagree with the assigned ratings and this appeal ensued. As such, the relevant period on appeal starts on April 25, 2008. This appeal was previously before the Board in August 2016. At the June 2016 Board hearing, the Veteran’s representative indicated that there were outstanding Social Security Administration (SSA) and Vet Center treatment records. The appeal was remanded to obtain such records. Since the August 2016 Board remand, the Veteran’s SSA records and Vet Center records have been associated with the Veteran’s claims file. As such, the Board finds that there has been substantial compliance with the August 2016 Board remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  An initial rating of 50 percent for PTSD, from April 25, 2008 to February 3, 2015, is granted. The Veteran asserts that he is entitled to an initial 70 percent rating for his service-connected PTSD. PTSD is evaluated under either the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Codes 9201-9440. Pertinent to this appeal, the General Rating Formula for Mental Disorders rates PTSD as follows: A 30 percent rating is assigned when a veteran’s PTSD causes 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when a veteran’s PTSD causes 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-term 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. Id. A 70 percent evaluation is assigned when a veteran’s PTSD causes 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); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a veteran’s PTSD causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. The Veteran was afforded a VA examination in November 2008. However, the examination was performed in conjunction with the service connection claim for PTSD. The examination report discusses the criteria for service connection. The report does not discuss the current symptoms experienced by the Veteran and does not provide much information pertaining to the criteria for increased rating purposes. The Veteran provided testimony at the June 2016 Board hearing. He testified that he had at least a hundred jobs since his separation from the military. He reported that he had a hard time going to work, day after day. He would start out with calling in sick and coming in late and then eventually get fired or quit. He reported that he had problems with both co-workers and supervisors. He testified that since his separation from the military, he was never able to hold a job for more than one year. He testified that the last time he worked was at Home Depot, from December 2014 to April 2015; and since he left Home Depot, he had not sought employment. The only medical evidence of record addressing the Veteran’s PTSD from April 25, 2008 to February 3, 2015, is from his VA treatment records and his SSA records. The Veteran’s VA treatment records show that he reported anxiety attacks, sometimes rising to the level of panic attacks. He reported that the anxiety attacks would occur every few days and the more serious panic attacks, when he feared that he would faint, occurred less frequently. See VA Treatment Record dated November 26, 2008. He reported that he was homeless and was living in a homeless shelter for Veterans. Although he thought living in the Veteran’s shelter was an overall positive experience, he did report that it increased his anxiety and noticed an increase in nightmares. He reported that he had spent some time with a woman friend, but was not sure if he could characterize it as a romantic relationship; he also reported having a few friends. Id. He also endorsed passive suicidal ideation, to the extent that he sometimes stated that he did not want to live, but stated that he did not want to die either. Id. The Veteran underwent a PTSD assessment in April 2009, as identified by the Veteran’s representative at the June 2016 Board hearing. The Veteran reported that he divorced from his ex-wife in May 2008, but they continued to have a romantic relationship and live together. He did describe their relationship as turbulent, which included episodes of physical aggression and destructive behavior. He reported that he was unemployed at that time. The examiner reported that the Veteran had the following symptoms: depressive symptoms, decreased appetite nearly every day, insomnia, significant fatigue, low self-esteem, poor concentration, and hopelessness. A December 2009 functional evaluation of the Veteran showed a marked limitation in his ability to remember locations and work like procedures, carry out very short and simple instructions, sustain an ordinary routine without special supervision, respond appropriately to changes in the work setting, and being aware of normal hazards and taking appropriate precautions. See SSA Record, pg. 12. A private treatment record found in the Veteran’s SSA records shows that he presented to the hospital in February 2009 for depression with suicidal ideation. He reported that he had no money, no job, and no place to live; and did not want to talk to anybody, felt ashamed, embarrassed and just wanted to go away, to disappear. He reported that he had no contact with his sisters and minimal contact with his mother, due to shame. He reported the following symptoms; anxiety, trouble sleeping, anhedonia, hopelessness, difficulty concentrating, and loss of appetite over the past several months. The Veteran reported that he ran out of his psychiatric medication two weeks prior to coming to the hospital and did not refill them. The physician recommended that the Veteran stay in the hospital for stabilization, medication management, and aftercare planning. Here, based on the evidence of record, the Board finds that the Veteran’s PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity during this period on appeal, warranting an initial 50 percent rating. Regarding the Veteran’s social functioning, he reported that he was divorced, but was still romantically involved and lived with his ex-wife for some time after they legally separated. Although they maintained a relationship, he described it as turbulent, and there were reports of physical and mental abuse, from both parties. He reported that he had a few friends and maintained minimal contact with his mother; however, did not have any contact with his sisters. Here, the evidence has shown that while the Veteran has had some personal relationships during this period on appeal, they were negatively impacted by his PTSD symptoms and he showed a difficulty in establishing and maintaining effective social relationships. Regarding the Veteran’s occupational functioning, he reported significant trouble maintaining employment. He estimated that since his separation from the military, until the June 2016 Board hearing, that he had over a hundred different jobs. He reported that he never had a job for more than one year, and that he had trouble getting along with both co-workers and supervisors. His representative reported at the June 2016 Board hearing that the first couple of months would go well and he would eventually decompensate and end up getting fired or quitting. Here, the evidence shows that although the Veteran was able to secure a substantial amount of jobs, he was never able to sustain employment due to the symptoms of PTSD, as evidenced by the fact that he had never held a job for more than one year. It is important to note that there have been no VA examiners or any other medical professionals who have opined as to the specific level of impairment caused by the Veteran’s PTSD symptoms, in regard to the criteria for an increased rating prior to 2015 and limited evidence. See 38 C.F.R. § 4.130. Nevertheless, the evidence of record prior to 2015 supports a 50 percent rating. The Board concedes that the Veteran has not shown most of the criteria for a 50 percent rating, set forth under Diagnostic Code 9411. Prior to February 2015, he was not shown to exhibit flattened affect; stereotyped speech, impaired judgment; impaired abstract thinking; or disturbances of motivation and mood. The Veteran was shown to experience anxiety attacks every few days, with more serious panic attacks, occurring less frequently; difficulty in understanding short and simple instructions, and impairment of short-term memory. He also showed difficulty in establishing and maintaining effective work and social relationships, as evidenced by his minimal contact with his mother, having only a few friends, and having no contact with his sisters. He has also been divorced and although he maintained a romantic relationship with his ex-wife after their legal separation, the evidence has shown that they had a turbulent relationship, that included both emotional and physical abuse. The Veteran has shown additional symptomatology that is not enumerated in the rating schedule, including decreased appetite, low self-esteem, poor concentration, and anhedonia. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board finds that these symptoms in conjunction with those enumerated in the schedule and experienced by the Veteran support a finding of occupational and social impairment with reduced reliability and productivity. The Board also acknowledges that the Veteran did show passive suicidal ideation during this period on appeal. In February 2009 for depression with suicidal ideation; he stated that he just wanted to go away, to disappear. The Board recognizes that suicidal ideation is a very serious symptom of PTSD, as it is a symptom associated with a 70 percent rating. The Board has considered whether the Veteran is entitled to a 70 percent rating during this period on appeal; however, concludes that such a rating is not warranted. The Board does note that the Veteran was off his psychiatric medication at the time of the February 2009 hospitalization and it was recommended by the treating physician that he stay in the hospital for stabilization and for medication management. His VA treatment records indicate that he was prescribed his psychiatric medication in April 2009. See VA Treatment Record dated April 19, 2009. Since the 2009 hospitalization, the VA treatment records indicate that the Veteran’s medication management has been stable, and there have been no further reports of suicidal ideation. As such, this isolated period during which the Veteran’s psychiatric symptomatology flared is not seen as indicative of the rest of the period on appeal prior to February 2015. Likewise, the period of hospitalization was not so long as to support a temporary total rating or a staged rating. Moreover, even at the 2015 VA examination the examiner still estimated that the Veteran’s psychiatric symptomatology caused impairment consistent with a 50 percent rating. At the Veteran’s hearing, his representative suggested that the Veteran was on Social Security Administration disability on account of his PTSD, but the evidence shows that orthopedic disabilities were the primary disabilities leading to the grant, with the psychiatric problems being secondary. Here, although the Veteran endorsed suicidal ideation on one occasion during the early portion of the appeal, he did not appear to have any plans or intent, and it was not shown to greatly impact his social and occupational functioning to the degree that a 70 percent rating is found to be warranted. As such, to the extent the Veteran had passive suicidal ideation, without any plan or intent, it has not been shown to so impact his social and occupational functioning as to support the assignment of rating in excess of 50 percent during this period on appeal. That said, the Board finds that the criteria for a higher rating of 70 percent during this period on appeal has not been met. In this regard, the available lay and medical evidence indicate that he maintained a few social relationships, albeit with some difficulty, which suggests that he did not have an inability to establish and maintain effective relationships, a finding necessary for a 70 percent rating. Rather, he had difficulty with relationships as contemplated by a 50 percent rating. Here, the Veteran did report fleeting suicidal ideation during this period on appeal; however, he has not been shown to have, nor endorsed any of the other symptoms commensurate with a 70 percent rating including obsessional rituals; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; or difficulty adapting to stressful circumstances. While the Veteran need not suffer from all of the enumerated symptoms in the rating criteria to establish entitlement to a higher rating, the symptoms he does have must cause the corresponding level of social and occupational impairment of the higher ratings, which has not been demonstrated in this case. Although he was briefly hospitalized for depression and suicidal ideation on one occasion in 2009, he has not shown that his PTSD symptomatology warrants a 70 percent rating. As such, the Board finds that a rating of 50 percent, but no higher, is warranted for the Veteran’s PTSD, prior to February 2015. Accordingly, a 50 percent rating for PTSD, from April 25, 2008 to February 3, 2015, is granted. A rating in excess of 70 percent for PTSD, from February 3, 2015, forward, is denied. The Veteran seeks a disability rating in excess of 70 percent for his service-connected PTSD, from February 3, 2015, forward. The Veteran was afforded a VA examination in February 2015. After an in-person examination and a review of the Veteran’s claims file, the examiner reported that the best summary of the Veteran’s level of impairment due to PTSD was, occupational and social impairment with reduced reliability and productivity, a finding consistent with a 50 percent rating. The Veteran reported that he is still divorced, but maintained a relationship with his ex-wife. The Veteran reported that his mother passed away, which has caused him to become more distant from his family. He reported that he had limited relationships and noted that he is a “loner.” He reported that since 2008, he had mostly performed odd jobs such as shoveling snow, repairs, and cleaning houses. He reported that in the past year he had attempted to start his own gardening business and submitted one of his plants to a local flower show, which won second place. He stated that although people love his creations, he did not have the funds to be able to keep the business going. He reported working at Home Depot since December 2014, but noted that he was often tardy and was currently on a 90-day probation period as a result. He reported that he was not currently engaged in therapy because he found it difficult to connect to therapists and other group members and did not find therapy helpful. The examiner reported the Veteran’s PTSD symptoms, depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty adapting to stressful circumstances; neglect of personal appearance and hygiene; and an inability to maintain and establish effective relationships. The Veteran was afforded another VA examination in March 2020. After a video telehealth examination and a review of the Veteran’s claims file, the examiner reported that the best summary of the Veteran’s level of impairment due to PTSD was, occupational and social impairment with reduced reliability and productivity, a finding consistent with a 50 percent rating. The Veteran reported that he was single. He reported that he works at art fairs and tries to sell his paintings and other works of art. The examiner reported the following PTSD symptoms, depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty adapting to stressful circumstances; and an inability to establish and maintain effective relationships. The Veteran’s medical records during this period on appeal do not reveal any findings consistent with total social and occupational impairment. The Board finds that the weight of the evidence is against a total schedular rating for PTSD. At the February 2015 and April 2020 VA examinations, both respective VA examiners found that the Veteran’s level of impairment was occupational and social impairment with reduced reliability and productivity. The Board also notes that the Veteran did not provide any testimony at the June 2016 Board hearing suggesting that he had total social and occupational impairment. Further, the evidence of record indicates that he maintained a relationship with his ex-wife for some time after their legal separation. As far as his occupational impairment, he reported that he attempted to open a flower business and at the latest VA examination, reported that he creates art and tries to sell them at art fairs. The Board finds that a disability rating in excess of 70 percent is not warranted because the evidence does not establish that the Veteran’s PTSD manifests in total occupational and total social impairment. See 38 C.F.R. § 4.130. The Board notes that “total” is defined as “whole, not divided; full; complete,” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). The record reflects that the Veteran maintained a relationship with his ex-wife after their legal separation. He did report that he became more distant from his family after the passing of his mother; however, there has been no showing that the Veteran has total social impairment. Although the Veteran no longer has a job, he tries to sell his artwork at art fairs. Thus, although the Veteran’s PTSD causes significantly impaired social and occupational functioning, the Veteran’s ability to produce art and sell it, supports a finding that the Veteran is not completely socially or completely occupationally impaired. The Board does not wish to minimize the impairment caused by the Veteran’s PTSD, but a 70 percent rating contemplates an inability to establish and maintain effective relationships and compensates him to the extent practical for his earning impairment. Here, the Veteran has demonstrated some social and occupational functioning, therefore, he does not have total social and total occupational impairment. Accordingly, a rating in excess of 70 percent for PTSD, is denied. REASONS FOR REMAND The Veteran asserts that he is entitled to a TDIU as a result of his service-connected PTSD. Specifically, he asserts that a TDIU rating should be granted to the initial date of his PTSD disability rating, October 28, 2008. The Board notes that a TDIU was granted in an August 2020 rating decision, with an effective date of February 3, 2015. However, the Veteran’s TDIU claim is a Rice inferred claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). VA received correspondence from the Veteran’s social worker on October 28, 2008, indicating that he had experienced significant trouble sustaining jobs since his separation from the military, as a result of rage attacks on the job that would result in him getting fired or being forced to resign. As such, a TDIU could be awarded prior to February 3, 2015. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Prior to February 3, 2015, the Veteran was only service connected for PTSD, now rated at 50 percent based on the findings above from April 25, 2008 to February 3, 2015. The Veteran is still only service-connected for PTSD and still does not have one disability, rated at 60 percent or more. As such, prior to February 3, 2015, the Veteran does not meet the schedular requirements for a TDIU. 38 C.F.R. § 4.16 (a). The Veteran’s claims file contains the summary of a medical opinion from a Dr. Stetson, an SSA examiner who provided a functional evaluation of the Veteran in December 2009. Dr. Stetson opined that the Veteran had marked limitation in his ability to remember locations and work like procedures, carry out very short and simple instructions, sustain an ordinary routine without special supervision, respond appropriately to changes in the work setting, and being aware of normal hazards and taking appropriate precautions. The Veteran does not meet the scheduler threshold for a TDIU contained in 38 C.F.R. § 4.16 (a), prior to February 3, 2015. Thus, a TDIU may only be assigned on an extraschedular basis. 38 C.F.R. § 4.16 (b). The Board cannot award a TDIU rating under 38 C.F.R. § 4.16 (b) in the first instance, as that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Therefore, the Board finds that remand is necessary. The matters are REMANDED for the following action: Refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination as to whether the Veteran’s disability picture warrants the assignment of a TDIU, on an extraschedular basis between April 25, 2008 and February 3, 2015. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.