Citation Nr: 21003511 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-19 632 DATE: January 21, 2021 ORDER Entitlement to an increased rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD), effective April 23, 2013, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective April 23, 2013 to August 20, 2018, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Effective April 23, 2013, the severity, frequency, and duration of the Veteran’s symptoms more closely approximates occupational and social impairment with deficiencies in most areas due to near-continuous panic, suicidal ideation, and impaired impulse control; but does not demonstrate total occupational and social impairment. 2. Effective April 23, 2013, the Veteran’s service-connected PTSD precluded him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for PTSD have been met, effective April 23, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have been met, effective April 23, 2013 to August 20, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1969 to February 1972 and October 1974 to November 1975. This matter comes to the Board of Veterans’ Appeals from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in May 2014, which granted a temporary total rating because of hospitalization over 21 days from July 30, 2013 to October 1, 2013, for PTSD, and assigned a 50 percent rating, thereafter. The Veteran filed a notice of disagreement with the May 2014 rating decision in June 2014, noting that he was disagreeing with the denial of PTSD increased rating and the paragraph 29 benefits. However, the subsequent statement of the case in May 2015 notes the issue on appeal as entitlement to an increased rating for PTSD higher than 50 percent. The Veteran continued to assert entitlement to a higher rating for his PTSD on his VA-Form 9 and testimony at his Board hearing, rather than the issue of entitlement to an extension for his temporary total rating based on hospitalization for his PTSD. Thus, it appears that the Veteran intended to seek a higher rating for his PTSD; and has abandoned any claim for an entitlement to an extension for his temporary total rating based on hospitalization for his PTSD. The Veteran testified at a Board videoconference hearing in October 2017. In July 2018, the Board remanded the case for additional development. It was noted in the remand that the issue of entitlement to a TDIU had been raised during testimony at the hearing. On remand, the AOJ granted an increased rating of 100 percent for the Veteran’s PTSD, effective August 20, 2018. See rating decisions dated in September 2018 and June 2020. Thus, the issue of entitlement to an increased rating for PTSD and/ or a TDIU, effective August 20, 2018, is rendered moot, as the highest possible benefit has been assigned. There having been substantial compliance with the Board remand directives by the AOJ, the case is now returned for appellate review. 1. Entitlement to an increased rating higher than 50 percent for posttraumatic stress disorder (PTSD), effective prior to August 20, 2018 The Veteran contends that he is entitled to a higher rating for PTSD because he has suicidal ideation and panic attacks two to three times per week. See October 2017 Board hearing testimony, pp. 4-5. He also mentioned that he had two beers per day and sometimes more than he should. Id. at 7. 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). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms more closely approximate the level of impairment contemplated by a 70 percent rating. 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. VA treatment records, April 2013 and January 2014 VA examinations, and the Veteran’s lay statements show that the Veteran’s PTSD is manifested by symptoms associated with a 70 percent rating, including impaired impulse control (such as unprovoked irritability with periods of violence), near-continuous panic, and suicidal ideation. The April 2013 VA examination report notes that the Veteran reported more significant use of alcohol use than before. He also had road rage but no confrontations; and passive suicidal ideations. He noted that his wife “puts up with [him]” and that he was often “short” with her. He indicated that he often socialized with a fellow Vietnam veteran friend and his neighbor, and their gatherings typically involved alcohol consumption. It also was noted that the Veteran had irritability or outbursts of anger. The January 2014 VA examination report notes the Veteran reported drinking one to two beers daily with heavier use on weekends. He also was found to have irritable behavior and angry outbursts with little to no provocation, and reckless or self-destructive behavior. The examiner noted that the Veteran continued to self-medicate with alcohol despite the health consequences, though he was attempting to decrease his use. As noted, the Veteran testified at the Board hearing in October 2017 that he had suicidal ideation and panic attacks two to three times per week. He also mentioned that he had two beers a day and sometimes more than he should. See Board hearing testimony, pp. 4-5, 7. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 70 percent rating. The Veteran had impaired impulse control, described as irritable behavior and angry outbursts with little to no provocation, and reckless or self-destructive behavior, as noted on the January 2014 VA examination report. The April 2013 and January 2014 VA examination reports also noted excessive drinking. It was noted that the Veteran had tried to reduce his alcohol consumption but that he continued to self-medicate. The Veteran’s PTSD was originally described as PTSD with alcohol dependence. See, e.g., July 2012 rating decision. Later, his PTSD was described as PTSD with panic attacks and dissociative symptoms. See, e.g., June 2020 rating decision. However, his alcohol dependence remains a facet of his service-connected PTSD. The Veteran also testified as to having suicidal ideation and panic attacks two to three times per week. See October 2017 Board hearing testimony, p. 5. He noted that occupationally, he could not work with panic attacks and episodes of losing track of time a few times per month. Id. at 13-14. Socially, he testified that while he had a wife of over 30 years, he did not have any other social relationships. Id. at 14-15. Overall, these symptoms show occupational and social impairment with deficiencies in most areas. The medical evidence prior to August 20, 2018 does not show that a rating higher than 70 percent is warranted. The Board notes that the Veteran expressed suicidal ideation, as well as reckless or self-destructive behavior, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation and reports of self-destructive behavior has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the April 2013 and January 2014 VA examination reports. He also noted at his Board hearing that although he had frequent suicidal thoughts, he had no plan. In addition, while the Veteran continued to have excessive drinking habits, there is no record of legal infractions or medical emergencies as a result of his drinking. Further, while, as noted below, the Veteran has been granted a total disability rating based on individual unemployability due to service-connected disability, he was not totally socially impaired. While the Veteran reportedly did not have many social relationships, he still had been married for over 30 years. The Veteran noted on his VA-Form 9 in May 2015 that he had a GAF score of 31 at his hospital discharge for inpatient treatment in 2013. While the Veteran believes that he is entitled to a higher rating on the basis of Global Assessment of Functioning (GAF) scores, “[a]n adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness.” Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). In sum, the Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating, but no higher. As to the effective date, the Veteran filed his increased rating claim on appeal in November 2013 when he sought both entitlement to an increased rating for PTSD and paragraph 29 benefits. As the April 2013 VA examination showing entitlement to an increased rating was within one year prior to the November 2013 claim, April 23, 2013, is considered the effective date of the 70 percent rating for PTSD See 38 C.F.R. § 3.400 (o)(2) (noting that the effective date for an increased rating is the earliest date of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim.). 2. Entitlement to a TDIU The Veteran meets the schedular requirements for a TDIU, effective April 23, 2013, as a result of the grant of an increased rating of 70 percent for PTSD in this decision. Specifically, he had at least one disability rated as 40 percent disabling, e.g., PTSD, rated 70 percent from April 23, 2013. He also had a combined rating of 70 percent, from April 23, 2013, including a 70 percent rating in effect for PTSD, from April 23, 2013; and a 10 percent rating for a left ankle disability, effective September 30, 2010. See 38 C.F.R. §§ 4.16(a), 4.25. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by non-service- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. On his formal TDIU claim in July 2018, the Veteran noted that he last worked in September 1991 as a truck driver/ equipment operator, until he became too disabled to work. He reportedly had two years of college and a degree in electronics. An April 2013 VA mental health examination report shows that while the Veteran had been receiving Social Security Administration (SSA) disability benefits since 1992 for a cervical spine injury, his employment as a truck driver prior to that time had been reportedly inconsistent and marred by “missing work a lot” due to his drinking. As noted in the previous section, the Veteran’s alcohol abuse is considered a symptom of his PTSD. It also was noted that the Veteran had irritability or angry outbursts. A February 2014 VA examination report shows that the Veteran had significant distress or impairment in occupational functioning. He had irritable behavior and angry outbursts, and problems with concentration. The Veteran testified at the October 2017 Board hearing that his PTSD prevented him from working because he had problems with panic attacks and memory. See October 2017 Board hearing transcript, p. 13. He also mentioned that several times per month he would forget what he was doing and where he was and lose track of time. Id. at 13-14. An August 2018 VA examination report shows that the Veteran’s PTSD and alcohol use disorder appear highly likely to negatively impact his occupational functioning. His disturbances of motivate and mood appeared likely to impede his efficiency and productivity in a work setting. He likely would have trouble sustaining a consistent level of performance. (Continued on the next page)   Based on the medical evidence of record, the Board resolves all doubt in the Veteran’s favor in concluding that the Veteran’s current service-connected PTSD rendered him unemployable. Therefore, entitlement to a TDIU is established, effective April 23, 2013. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.