Citation Nr: 21005216 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 17-46 709 DATE: January 29, 2021 ORDER Entitlement to an increased disability evaluation in excess of 50 percent disabling for service-connected posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability evaluation based upon individual unemployability (TDIU) is remanded. Entitlement to service connection for eczema is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's PTSD symptoms do not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for PTSD have not 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 FINDING AND CONCLUSION The Veteran had active duty service from February 1970 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision (RD) issued by a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating 1. Entitlement to an increased disability evaluation in excess of 50 percent disabling for service-connected posttraumatic stress disorder (PTSD) Upon remand, the Veteran was afforded a November 2019 VA examination. Based on the medical findings therein, the Veteran is now in receipt of a 50 percent disability rating for the entire period on appeal. See May 2020 Rating Decision. The Veteran contends that he is entitled to at least a 70 percent disability rating for his service-connected PTSD, as the disability causes him serious impairment. See March 2018 Notice of Disagreement. 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 did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. 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. To the extent that the Veteran's symptoms improve on medication, generally, VA does not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Conversely, if [the applicable diagnostic code] does specifically contemplate the effects of medication, then Jones is inapplicable." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Here, Diagnostic Code 9411 expressly authorizes VA to take into account the ameliorative effects of medication when evaluating PTSD and other psychiatric disabilities. 38 C.F.R. § 4.130, Diagnostic Code 9411 (providing a noncompensable PTSD evaluation when, inter alia, "symptoms are not severe enough... to require continuous medication" and a 10 percent PTSD evaluation when, inter alia, "symptoms [are] controlled by continuous medication"). As such, the Board finds that, when rating psychiatric disabilities utilizing the General Rating Formula for Mental Disorders, the symptoms of a mental disorder are to be considered with the ameliorative effects of medication included. VA and private treatment records, the December 2017 and November 2019 VA examinations, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 30 percent rating (mild memory loss, depressed mood, anxiety, suspiciousness, chronic sleep impairment), symptoms associated with a 50 percent rating (panic attacks more than once a week, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships), and symptoms associated with a 70 percent rating (difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, impaired impulse control, suicidal ideation). The Board finds that the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Per the November 2019 VA examination report, the Veteran’s PTSD disability manifests with depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, difficulty in adapting to stressful circumstances, including work or a work like setting. Relative to these medical findings, the VA examiner indicated that the Veteran has significant difficulty functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others, sleep is so disturbed that he is usually fatigued at work, making concentration and focus on work assignments difficult, and that the Veteran’s irritability impacts his work progression as noted in the examination report. See November 2019 Individual Unemployability Statement. The Board finds that the November 2019 VA examiner’s findings align with those made by the private medical examiner who opined that the Veteran suffers from depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. See November 2018 private medical assessment. The private medical examiner elicited from the Veteran that his mood has been good. Subsequently, the Veteran relayed that since the aforesaid medical assessment, not much had changed in terms of his PTSD symptomatology, while adding that he works part time at a golf course as a ranger. See November 2019 private treatment record. Per the December 2017 VA examination, the Veteran’s disability manifests with occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The VA examiner elicited from the Veteran that he is generally functioning quite well and has some meaningful interpersonal relationships. The Veteran reported having numerous friends and acquaintances, several enjoyed activities, as well as a history of gainful employment. The VA examiner indicated that the Veteran suffers from depressed mood, anxiety, and chronic sleep impairment. During the examination, the Veteran stated on his currently prescribed medication, his mental health symptoms do not impact his day-to-day functioning. See also September 2019 VA treatment record (“anxiety/depression/insomnia stable with [medication]”). The Veteran added that he can avoid stuff such like having to deal with people at work. The VA examiner indicated that while the Veteran suffers from decreased motivation and mood, and feelings of detachment, they are subclinical in nature. Per the VA examiner’s behavioral observations, the Veteran was cooperative and was deemed to be a fair to good informant, although there was evidence of a mild embellishment of both mental health symptoms and related functional impairments. The Veteran had good hygiene and grooming, with normal speech, alert, attentive, and oriented to person, place, time, and situation with his memory abilities being intact. His thought processes were deemed to be logical and oriented with no evidence of delusional thought content. The Veteran described his mood as okay indicating that he has a lot of work around his yard and house to keep himself busy. The Veteran denied having suicidal ideations or intentions. Lastly, the Veteran conveyed that anger is his most significant health problem and that he has to avoid conversations of politics, war, etc. The VA examiner indicated that the Veteran may have embellished his self-report as his responses were more elevated than would be expected during the interview portion of the evaluation and were also contradicted by the Veteran’s own statements. The Veteran was also examined in October 2017, and the private medical examiner opined that the Veteran’s disability manifests with anxiety, depressed mood, mild memory short term, affect constriction, unable to perform some daily activities due to symptoms of stress, lack of motivation due to mood symptoms, difficulty starting, and, or maintaining healthy relationships with friends, general difficulty adapting to stress at work or at home, obsession about safety, checking, watching, impaired impulse control, lack of desire for intimacy and travel/visiting others. The private medical examiner added that the Veteran was a little anxious, but ultimately cooperative, and answered the questions during the assessment appropriately. Collectively, the private treatment records reveal that the Veteran did not experience flight of ideas, looseness of association, auditory, visual or tactile hallucinations, and was often described as being alert, well oriented, and, at times, in a good mood. See e.g. February & August 2018 private treatment records. While the November 2019 VA examination report indicates passive suicidal and homicidal ideations, the Board does not find that those symptoms rise to the level of the Veteran being a persistent danger of hurting self or others, as would be required under the criteria for a 100 percent rating in that the Veteran states that he is able to calm himself down without those same continued thoughts. The Veteran did experience symptoms contemplated by a 70 percent rating, namely difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, impaired impulse control, and suicidal ideation; however, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. To point, the November 2019 VA examination report reveals that the Veteran has good relationships with his family, and that while he has experienced social withdrawal since leaving service, he has improved over time. The December 2017 VA examination report revealed that the Veteran is generally functioning quite well and has meaningful interpersonal relationships as supported by the subsequent November 2019 VA examination report. The December 2017 VA examiner added that none of the Veteran’s mental health symptoms significantly impact his ability to work in an occupational environment. See February 2018 addendum medical opinion. The evidence of record also reveals statements made by the Veteran that his overall mental health symptoms have not increased during the period on appeal and that his symptoms of depression, anxiety, and insomnia are well controlled on medication. See February 2018 Addendum Medical Opinion (“he reiterated his overall mental health symptoms have not changed since he last worked”); November 7, 2017 private medical assessment (“I have been fine, nothing major happened”); see also September 2019 VA treatment record. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. The Veteran also did not report any impairment with sedentary and physical occupational functioning relative to his mental health symptoms. Id. 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); March 2018 Notice of Disagreement. In sum, and for the aforementioned reasons and bases, the Board concludes that an increased rating in excess of 50 percent is not warranted for the Veteran's service-connected PTSD. REASONS FOR REMAND 1. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) is remanded. 2. Entitlement to service connection for eczema is remanded. In March 2019, the Board denied the Veteran’s claim for service connection for eczema. Subsequently, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In an April 2020 CAVC Memorandum Decision, the Court opined that the Board erred in finding that a medical examination was not warranted in this Veteran’s case. Accordingly, another remand is needed in order to address whether direct service connection is warranted based on the Veteran’s conceded exposure to Agent Orange during service. Id.; see McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). While the Veteran does not currently meet schedular criteria for a TDIU, the remanded claim for service connection for eczema has the potential to substantially impact the same, and therefore the Board finds the issues to be inextricably intertwined and will defer deciding the issue of TDIU pending the additional development requested herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Associate with the Veteran’s claims file any outstanding VA treatment records since February 2020. 2. Thereafter, schedule the Veteran for a VA examination to assess the nature and etiology of his claimed for eczema condition. Upon review of the pertinent evidence of record, to include this remand, opine as to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran has a currently diagnosed skin condition that incurred in service, or is otherwise directly related to service, to include as due to conceded Agent Orange exposure? Provide a rationale to support the opinion(s). 3. Readjudicate the issue of TDIU. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.