Citation Nr: 21002049 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-33 152 DATE: January 12, 2021 ORDER Entitlement to a rating in excess of 50 percent for service-connected post-traumatic stress disorder prior to March 12, 2020 is denied. Entitlement to a rating in excess of 70 percent for service-connected post-traumatic stress disorder from March 12, 2020 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. Prior to March 12, 2020, the Veteran’s PTSD resulted in no more than occupational and social impairment with reduced reliability and productivity. 2. The Veteran’s PTSD has not produced total occupational and social impairment at any point during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD prior to March 12, 2020 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 70 percent for PTSD are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from March 1969 to October 1970. The Veteran appeared before the undersigned Veterans Law Judge at an October 2019 Board hearing. This matter returns to the Board from a January 2020 Board remand. The record indicates the Veteran is unemployed and has been since 2015. He has met the schedular criteria for a TDIU since 2009 and there is an indication his PTSD may have an impact on his functionality. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of a rating issue when unemployability is expressly raised by a veteran or reasonably raised by the record. As such, TDIU is reasonably raised by the record. Entitlement to a rating in excess of 50 percent prior to March 12, 2020, and 70 percent thereafter for service-connected post-traumatic stress disorder Service connection for PTSD was granted in a January 2010 rating decision. A 10 percent rating was assigned from June 30, 2009 (date of claim). A notice of disagreement with the assigned rating was filed in November 2010. An August 2014 rating decision increased the rating assigned for PTSD to 50 percent, effective from June 30, 2009. Such was issued contemporaneous with a statement of the case on the increased rating issue. A substantive appeal was received from the Veteran in September 2014. By a rating action dated September 2020, the rating assigned for the Veteran’s PTSD was increased to 70 percent, effective from March 12, 2020. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s psychiatric disability is rated under 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. A 70 percent rating is assigned with an 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); and inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130 DC 9411. A 100 percent rating requires 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. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction (AOJ) on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The Veteran’s claim was certified to the Board in April 2018 and, as such, the DSM-5 applies to his claim. The Board notes that the DSM-5 removed reference to Global Assessment of Functioning (GAF) scores. Thus, the Board will not use previously recorded GAF scores to determine the appropriate evaluation. Golden v. Shulkin, 29 Vet. App. 221, 225 (2018) (“the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies.”). The Veteran is not entitled to a rating in excess of 50 percent prior to March 12, 2020; nor is he entitled to a rating in excess of 70 percent for his psychiatric disability at any time during the appeal period. The evidence does not demonstrate occupational and social impairment with deficiencies in most areas, as 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); and inability to establish and maintain effective relationships prior to March 12, 2020. There is also no evidence that his PTSD has resulted in total social impairment. The evidence of record, including the December 2010 VA examination, March 2020 VA examination, and VA treatment records support symptoms of depression, irritability, lack of motivation, isolation and a desire to not be around people. At the December 2010 VA examination, the Veteran reported difficulty concentrating, intrusive thoughts, low energy levels, and recurrent thoughts about death, but denied suicidal ideation, trouble sleeping, or feelings of worthlessness. At the March 2020 VA examination, the Veteran reported a relationship, albeit strained, with his two stepchildren, and positive relationships with his brothers and sisters. Such belies a finding of total social impairment. Additionally, the record does not indicate the Veteran suffers from auditory or visual hallucinations, has grossly impaired judgment, is a danger to himself or others, or has disorientation to time and place. The Veteran’s wife submitted a statement in September 2014 in which she stated he never wanted to leave home and when he did, he was short with wait staff and did not socialize. He would stick to himself and did not talk to others. The Veteran also endorsed a desire to stay by himself at the December 2010 VA examination. Treatment records throughout the appeal period do not indicate more severe symptoms. In July 2009 the Veteran reported irritability, sadness, decreased interest in activities that previously he enjoyed, difficulty falling asleep, indecisiveness, isolation and withdrawal, decreased concentration, and low energy. The Veteran denied feeling hopeless, helpless, worthless, or suicidal/homicidal. In June 2014 the Veteran reported feeling depressed and no desire to do anything. He also reported that he did not want to live anymore; however, the examiner did not find that such was akin suicidal intention. The record does not indicate consistent reports of suicidal thoughts. The Veteran reported symptoms equating to a negative depression screening in February 2011, February 2013, July 2014, September 2016, January 2018, and January 2019.   The letter from the Veteran’s wife indicated the Veteran did not perform personal hygiene on his own. She indicated that his stepdaughter cut his hair, and this was the only reason his hair got cut. While being unable to maintain basic personal hygiene is contemplated by the 100 percent rating criteria, other evidence of record, including treatment notes and VA examinations, note the Veteran is appropriately groomed and dressed. The evidence does not demonstrate occupational and social impairment with deficiencies in most areas prior to March 12, 2020. The evidence demonstrates the Veteran maintained relationships and was employed until 2015 when he was laid off. As such, the evidence also does not rise to the level of severity contemplated by the 100 percent rating criteria as there is no evidence of total social impairment. The Board acknowledges the June 2014 report that the Veteran did not want to live anymore, which could warrant a higher rating than the currently assigned 50 percent. Suicidal ideation is a symptom contemplated by a 70 percent disability rating. However, aside from this single notation there are no other indications or findings of suicidal ideation, intent, or plan. The facts of this case are distinguishable from Bankhead v. Shulkin, 29 Vet. App. 10 (2017), in which the Court held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Bankhead, 29 Vet. App. at 19-23. This case is distinguishable from Bankhead because the Veteran has not had multiple and consistent instances of suicidal ideation throughout the appeal period. Indeed, even when it was he expressed that he no longer wanted to live, the care provider specifically noted that there was no evidence of suicidal ideation.   Consideration has been given to the Veteran’s representative’s argument that the March 2020 VA examination does not fully represent the Veteran’s PTSD symptoms. However, the contemporaneous medical evidence and statements from the Veteran do not indicate symptomatology not noted on the examination, nor does it indicate more severe symptomatology. In January 2019 The Veteran reported no depression, or feeling down, and his depression screening was negative. The Veteran also reported traveling in March 2018 and there are notations that the Veteran plays golf. The evidence of record supports the findings of the March 2020 VA examination. The preponderance of the evidence is against a finding of total social impairment. As such, a rating in excess of 50 percent prior to March 12, 2020 and in excess of 70 percent thereafter for PTSD is denied. REMAND Entitlement to a total rating based on individual unemployability is remanded The record indicates the Veteran has met the schedular criteria for a TDIU since 2009; and was employed until 2015. The Veteran reported his company went through lay-offs and he was laid off. It is unclear whether the Veteran attempted to find other employment after this or whether his service-connected disabilities prevent his employment. The Board notes that the Veteran is currently in receipt of a 100 percent rating for his prostate cancer; however, the 100 percent rating is subject to being reevaluated as per 38 C.F.R. § 4.115(b). He may also be eligible for special monthly compensation for the period when he is receiving the 100 percent rating. As such, the issue of entitlement to a TDIU should be developed. The Veteran has not submitted an application for unemployabilty, or a completed work and education history. The Veteran should be afforded the opportunity to submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, which summarizes his relevant employment factors.   The matter is REMANDED for the following action: Provide the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation based on Unemployability, for completion, and undertake any necessary development in order to adjudicate the issue of TDIU in a supplemental statement of the case. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski 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.