Citation Nr: 21001265 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 12-14 029 DATE: January 7, 2021 ORDER Entitlement to an evaluation of 70 percent, but not more, for service-connected posttraumatic stress disorder (PTSD) is granted from March 24, 2009 to December 17, 2014. Entitlement to an evaluation of 50 percent, but not more, for service-connected PTSD is granted from December 17, 2014. REMANDED Entitlement to a total disability evaluation due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From March 24, 2009 to December 17, 2014, the Veteran’s service-connected PTSD manifested as occupational and social impairment, with deficiencies in most areas. 2. From December 17, 2014, the Veteran’s service-connected PTSD manifested as occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. From March 24, 2009 to December 17, 2014, the criteria for a disability rating of 70 percent, but not more, for service-connected 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. 2. From December 17, 2014, the criteria for a disability rating of 50 percent, but not more, for service-connected 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 FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1991 to November 1991 and from September 2004 to October 2005. The Veteran’s active service included service in Southwest Asia, and he is a recipient of the Purple Heart Medal for wounds received in May 2005. By way of background, the Veteran presented May 2014 testimony at a hearing before Veterans Law Judge (VLJ) Cheryl Mason. Since that time, VLJ Mason has been sworn in as the Board’s Chairman. Pursuant to 38 U.S.C. § 7102 (b), a proceeding may not be assigned to the Chairman as an individual member. However, the Chairman may participate in a proceeding, such as this, which has been assigned to a panel. The Veteran’s appeal was most recently before the Board of Veterans’ Appeals (the Board) in February 2016. Following a previous remand in November 2014, the Veteran was scheduled for a VA examination to assess the severity of his PTSD. He did not attend the examination because he did not receive notice that it had been scheduled due to a change in his address. Deeming that the Veteran had shown good cause for missing his examination, the Board again remanded the appeal to afford the Veteran a VA examination. The Board also noted that VA treatment records and private treatment records remained outstanding and directed the Agency of Original Jurisdiction to request the Veteran’s permission to obtain those records. The Veteran underwent a VA examination to assess the severity of his service-connected PTSD in June 2016. The examination is adequate. It is based on a review of the Veteran’s claims file—to include the Veteran’s VA treatment records—and a thorough psychological examination. With respect to outstanding treatment records, the AOJ sought the Veteran’s permission to request VA and private treatment records. According to an April 2015 Report of General Information, the VA Veterans Center from which the Veteran received counseling stated that his permission was needed to release his records. The Veteran did not return any VA Form 21-4142s (Authorization and Consent to Release Information to the VA). According to the June 2016 VA examination report, the Veteran feels that those records are not applicable to his claim because the sessions addressed the protracted custody battle with one of his former spouses rather than his service-connected PTSD. In light of the foregoing, the Board concludes that there has been compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 1. Entitlement to an Initial Evaluation in Excess of 30 Percent for Service-Connected PTSD The Veteran contends that he is entitled to a rating in excess of 30 percent for his service-connected PTSD. According to an April 2010 statement from the Veteran, his PTSD symptoms resulted in him losing employment with a municipal police force and the erosion of his second marriage, which ended in divorce. He also reported suicidal ideation and decreased memory and concentration in his statement. 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, 114-18 (Fed. Cir. 2013). The Veteran’s PTSD is currently evaluated as 30 percent disabling. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. The Board concludes that the preponderance of the evidence shows distinct periods during which the Veteran’s service-connected PTSD manifested as symptoms warranting different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). From March 24, 2009 to December 17, 2014 a 70 percent rating is warranted. From December 17, 2014, a 50 percent rating is warranted. As the assignment of an increased evaluation, and then its reduction, is a retroactive action, and not a prospective one, the provisions regarding reduction are not applicable. Singleton v. Shinseki, 23 Vet. App. 376 (2010). Each period is discussed below. A. From March 24, 2009 to December 17, 2014 The Board concludes that the preponderance of the evidence supports a 70 percent rating from March 24, 2009 to December 17, 2014. In his May 2014 hearing testimony, the Veteran reported that he was a “complete mess” and in “lala land” following his separation from active service. Records as early as April 2010 document his report that he was on the brink of suicide. In addition, the Veteran admitted during his May 2014 hearing that he had thought about suicide. He testified that he was reluctant to share his suicidal ideation with his mental health providers for fear that it would negatively impact him in the protracted custody dispute with his former spouse from his second marriage. Thus, despite the Veteran’s consistent denials of suicidal ideation documented in his VA treatment records, the Board concludes that PTSD manifested as suicidal ideation sufficient to warrant a 70 percent evaluation. Indeed, the Veteran voluntarily surrendered his firearms to his local police department in 2009. December 2014 VA treatment records indicates that the Veteran surrendered them for “safe keeping” after losing his job in law enforcement and a confrontation with his ex-wife’s then-boyfriend. The fact that the Veteran voluntarily surrendered his firearms provides additional context and corroborates his statement and testimony regarding suicidal ideation. The evidence also shows that the Veteran tended to self-isolate due to his service-connected PTSD symptoms. A December 2009 VA examination notes his report of feeling numb and detached from others. In his May 2014 hearing testimony, the Veteran described himself as a “Lone Ranger” and preferred to be alone to manage his PTSD symptoms instead of discussing them with others. The Veteran’s PTSD also contributed to the decline of the Veteran’s second marriage. He reported during the December 2009 VA examination that his second marriage was good prior to deployment but worsened when returned from Southwest Asia in 2005. The Veteran testified in May 2014 that his need to be alone eroded his marriage. He would take the car and leave his home for up to five days at a time to be alone. These absences stoked his former spouse’s suspicions of infidelity and contributed to the couple’s divorce. The Veteran’s isolation—to include working off-hour shifts that involved minimal interaction with co-workers—was also one of his strategies for managing his temper and angry outbursts. In his May 2014 hearing testimony, the Veteran reported that he sought employment involving minimal interaction with others because of impatience and irritation. The record corroborates the Veteran’s hearing testimony regarding his concerns over angry outbursts. A November 2008 psychological assessment related to the Veteran’s employment status with a police department notes that his anger and lashing out prompted an analysis of his fitness to serve as a police officer. The assessment notes a September 2008 episode in which the Veteran made profane and threatening statements towards his colleagues. Another episode involved the Veteran being held in contempt of court due an outburst during a family court proceeding in which he angrily fired a police-union-appointed law firm. The Veteran’s impaired impulse control and angry outbursts are consistent with the criteria for a 70 percent evaluation. The Veteran’s December 2009 VA examination noted poor memory and concentration. He reported unusually poor performance on examinations, to include a commercial driver’s license examination that he failed three times. The Veteran reported that failing such an examination was unusual for him and had not occurred prior to his second period of active service. His April 2010 statement also reported impaired memory and poor concentration following the onset of PTSD. According to the Veteran, he had generally done well on examinations, but his results on examinations following his active service were worse than performances prior to his second period of active service. For instance, the Veteran reported he failed tests for a commercial driver’s license and to become a detective with his local municipal police department despite studying for it while on desk duty. In his May 2014 hearing testimony, the Veteran similarly reported worsening memory and poor concentration, particularly during examinations. A December 2009 includes the Veteran’s reports of intrusive thoughts, nightmares, and avoiding activities that triggered recollections of the traumas experienced during active service. The Veteran stated that he experiences anxiety attacks, which he described as intense fear and discomfort, when encountering stimuli that reminded him of his in-service stressors. According to the examiner, the Veteran grew fidgety and avoided eye contact while talking about those traumas, which he rarely, if ever, discussed. The Veteran endorsed guilt, loss of energy, fatigue, and a loss of interest in activities that he used to enjoy. The Board finds the severity, frequency, and duration of the Veteran’s symptoms—which include but are not limited to suicidal ideation, impulse control and angry outbursts, self-isolation, impaired memory and concentration, and anxiety attacks—most closely approximate the symptoms contemplated by a 70 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. In reaching this conclusion, the Board has extensively relied on the Veteran’s April 2010 statement and May 2014 hearing testimony even though he received treatment from a VA medical center from March 24, 2009 to March 2010 and episodic evaluations thereafter in May 2010, May 2011, and December 2014. (As noted above, the Veteran also received counseling treatment from a VA Veteran’s Center in a neighboring city that the Veteran believes is not relevant to his claim.) The Veteran’s treatment records do not show the severity of symptoms warranting a 70 percent evaluation. March 2010 VA treatment records note that the Veteran had his anger and frustration under control and that he was prepared to terminate treatment at that time. May 2010 VA treatment records note that the Veteran’s PTSD-related symptoms were in remission and “subthreshold” for a PTSD diagnosis. May 2011 VA treatment records note that he did not need mental health treatment at that time. According to Dr. S.M., who treated the Veteran’s PTSD, the Veteran had implemented the strategies and recommendations provided during voluntary treatment from March 2009 to March 2010. However, there is evidence of record indicating that the VA treatment records may understate the Veteran’s PSTD-related symptoms. Even though the Veteran reported in his December 2009 VA examination that he could vent all of his frustrations with Dr. S.M., September 2009 VA treatment records document the Veteran’s fears that his former spouse would use his PTSD against him in divorce and custody proceedings. The Veteran’s concerns were well-placed. His April 2010 statement notes that his PTSD was raised in a court proceeding related to an arrest for disorderly conduct following his encounter with his ex-spouse’s boyfriend. May 2011 VA treatment records include the Veteran’s report of his former spouse’s contention during the custody proceeding that he was “putting on a front” and posed a threat to himself and others. The Veteran similarly testified in May 2014 that he was not willing to be forth coming with his mental health providers while receiving treatment because of his fear that such candor could be used against him in family court proceedings. Accordingly, the Board weighs his statement and hearing testimony—together with his December 2009 VA examination—more heavily than his VA treatment records in finding that a 70 percent rating for his service-connected PTSD is warranted from March 24, 2009 to December 17, 2014. A 100 percent rating, however, is not warranted from March 24, 2009 to December 17, 2014. The preponderance of the evidence does not show the severity, frequency, or duration of suicidal ideation or other psychological symptoms rising to the level contemplated by a 100 percent disability rating. While the Veteran endorsed suicidal ideation in his April 2010 statement and May 2014 hearing testimony, he has not reported plan or intent. In May 2014 he testified that he likely could not go through with it because of his three children. Thus, the evidence does not show that there was a persistent danger of self-harm, which is contemplated by the 100 percent criteria. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Moreover, the Veteran has maintained good relationships with all three of his children, his siblings, and his father. The Veteran has also remained close with his first spouse, who he identified as one of his best friends in his December 2009 VA examination. The record also shows that the Veteran is consistently oriented to person, place, and time, has not neglected his personal hygiene, and did not have psychoses. See 38 C.F.R. § 4.130, Diagnostic Code 9411. B. From December 17, 2014 A 50 percent rating is warranted from December 17, 2014, the date the Veteran sought an assessment from Dr. S.M. in order to recover his firearms from the local police department. In that examination, Dr. S.M. indicated that the Veteran did not satisfy the diagnostic criteria for a mental health disorder. He had nightmares related to his in-service stressors 3 to 4 times per year, low depression, mild guilt, continued challenges with concentration, and some fatigue. Dr. S.M. concluded that no follow-up was necessary, and the Veteran knew how to access mental health resources if he needed them. The Veteran received a VA examination in June 2016. The examiner characterized the Veteran’s service-connected PTSD as resulting in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. This would generally support a 10 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. However, the examiner also noted that symptoms associated with the Veteran’s PTSD included anxiety, chronic sleep impairment, and disturbances of motivation and mood. The Veteran also continued to complain of impaired concentration. These symptoms, particularly disturbances in his motivation and mood, most closely align with the symptoms warranting a 50 percent evaluation. See id. In light of the foregoing, the Board concludes that a 50 percent rating is warranted. The Veteran’s PTSD symptoms had improved to the point that the Veteran no longer satisfied the diagnostic criteria; however, the June 2016 VA examiner still noted disturbances of motivation and mood and poor concentration. The persistence of those symptoms despite the Veteran’s overall improvement supports a 50 percent evaluation. See 38 C.F.R. §§ 4.3, 4.7. A rating in excess of 50 percent, however, is not warranted. VA treatment records in December 2014 indicate that the Veteran’s PTSD symptoms were well managed to the point that he no longer satisfied the diagnostic criteria for PTSD. Moreover, the Veteran’s more recent VA treatment records consistently note his denials of current PTSD symptoms. A June 2018 PTSD screening test was negative, and February 2020, August 2019, June 2019, June 2018, July 2017, and March 2016 VA treatment records note no PTSD symptoms. A rating in excess of 50 percent is therefore not indicated. REASONS FOR REMAND A claim for a TDIU is part and parcel of every claim for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The record raises the issue of the Veteran’s entitlement to a TDIU. First, a January 2009 statement shows that the Veteran was at risk of losing his employment with a municipal police department because of his PTSD symptoms. March 2011 VA treatment records show that he lost his job as a police officer in June 2009. Second, the Veteran’s VA treatment records documents periods of unemployment during the period on appeal. The Board cannot, however, adjudicate the Veteran’s entitlement to a TDIU for any period during the appeal period because the record does not provide a full picture of his employment history. For instance, March 2009, April 2009 and May 2009 VA treatments report that the Veteran is unemployed and looking for work. The March 2009 VA treatment records note the Veteran had worked full-time since the age of 18 and includes the clinician’s impression that the period of unemployment would likely be temporary. In June 2009, Dr. S.M. concluded that the Veteran was able to obtain and maintain employment. By August 2011, there is evidence suggesting that the Veteran was unemployed as of August 2011. However, stable employment was reported in a December 2014 VA treatment record. The Veteran also reported employment with a hotel as a night auditor for several years during the June 2016 VA examination. He left that position after being assaulted by a hotel guest. He also reported working part-time for a drycleaner 2 to 3 days per week in the June 2016 VA examination. Given the sporadic and incomplete information regarding the Veteran’s employment during the period on appeal, the Board concludes that a remand is needed to develop evidence regarding his employment history. The matters are REMANDED for the following action: Engage in development to ascertain the Veteran’s employment history for the period on appeal. Following that development, adjudicate his entitlement to a TDIU. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans’ Appeals Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.