Citation Nr: 21061290 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 15-46 842 DATE: October 1, 2021 ORDER An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI), previously rated as anxiety disorder not otherwise specified, sub-syndromal PTSD (hereinafter, anxiety disorder/PTSD and TBI), prior to January 19, 2012, is denied. A 100 percent rating for anxiety disorder/PTSD and TBI is granted, beginning January 19, 2012. REMANDED Entitlement to a total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU), prior to January 19, 2012, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. Prior to January 19, 2012, the Veteran's anxiety disorder/PTSD and TBI was manifested by 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). 2. Beginning January 19, 2012, the Veteran's anxiety disorder/PTSD and TBI has resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to January 19, 2012, the criteria for a rating in excess of 50 percent for anxiety disorder/PTSD and TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. Beginning January 19, 2012, the criteria for a 100 percent rating for anxiety disorder/PTSD and TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983to May 1985 and from February 1991 to May 1991. The Veteran was scheduled for a hearing before a Veterans Law Judge in January 2019, but did not appear. In June 2019, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § § 4.21. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § § 4.14 (2019). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to these disabilities. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. An initial rating in excess of 50 percent for anxiety disorder/PTSD and TBI, prior to January 19, 2012 Under Diagnostic Code 9413, non-specified anxiety disorder, a 50 percent rating is warranted if there is 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- 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9413. A 100 percent evaluation is warranted 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes 9413. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Analysis On November 17, 2010, the Veteran filed a petition to reopen his previously denied claim for service connection for PTSD. In an August 2013 rating decision, the RO granted service connection for an anxiety disorder not otherwise specified, sub-syndromal posttraumatic stress disorder (claimed as posttraumatic stress disorder and psychotic disorder). A 50 percent evaluation was assigned, effective May 11, 2012, under Diagnostic Code 9413. In a May 2020 rating decision, in accordance with the Board's June 2019 decision, the RO granted an earlier effective date of November 17, 2010 for the service-connected anxiety disorder. The Veteran filed a claim for service connection for TBI on June 26, 2012. In a May 2021 rating decision, the RO granted service connection for traumatic brain injury (TBI) and recharacterized the Veteran's disability PTSD and TBI (previously rated as anxiety disorder not otherwise specified (NOS), sub-syndromal PTSD. A 70 percent evaluation was assigned, effective June 26, 2012, under Diagnostic Code 8045, for rating TBI, and a 100 percent evaluation was assigned, effective October 20, 2020, under Diagnostic Code 9411 for rating PTSD. The RO noted that the Veteran was afforded a VA examination in October 2020 and the examiner concluded that the Veteran met the criteria for a diagnosis of TBI, due to events that occurred while on active duty. The RO found that the Veteran's TBI existed from the time of his claim in June 2012. The October 2020 examiner also concluded that the Veteran's anxiety disorder had progressed to PTSD. Therefore, the RO recharacterized the service-connected anxiety disorder as PTSD. The examiner was unable to differentiate what symptoms were attributable to TBI and PTSD. When a Veteran has a diagnosed TBI and a co-existing separate psychiatric disorder, separate evaluations may only be assigned if the VA examiner is able to delineate the symptoms and occupational and social impairment. (38 C.F.R. § 4.14, 38 C.F.R. § 4.124a). As these two disorders (anxiety/PTSD and TBI) could not be separated, a single evaluation of anxiety disorder/ PTSD with TBI was assigned. The examiner was also unable to distinguish the source of symptoms. Therefore, the RO noted that the evaluations were made under whichever set of evaluation criteria allowed the better assessment of overall impaired functioning due to behavioral/emotional symptoms of both disorders. Period Prior to January 19, 2012 Prior to January 2012, the Veteran is assigned a 50 percent evaluation under Diagnostic Code 9413, for a non-specified anxiety disorder. The evidence discussed below does not show that the Veteran's psychiatric disorder, diagnosed as an anxiety disorder, meets the criteria for a rating in excess of 50 percent prior to January 19, 2012. VA treatment records show in November 2010, the Veteran reported symptoms of anxiety, nightmares, and headaches. He defined anxiety as being anxious, confused, feeling down and depressed, with no desire to do anything, and wanting to be alone. He also reported sleep impairment, and audio and visual hallucinations. He denied suicidal or homicidal ideation. VA treatment records from February 2011-February 2012 note diagnoses of PTSD and depression. In March 2011, he reported isolating himself in one room in the home he shared with his mother, similar to what he experienced while in jail. He also reported anger accompanied by auditory hallucination with homicidal ideation related to an isolated incident, but it did not last. The Veteran's main symptoms prior to January 19, 2012 did not result in deficiencies in most areas. In this regard, he did have disturbances of motivation and mood, and was dealing with depression, but he still functioned independently. There was impairment in thinking, in that he reported feeling confused, as well as occasional audio and visual hallucinations, but these symptoms did not appear to have a major effect on his functioning. He also endorsed social isolation, in that he preferred to be alone, however, there is no evidence of any major social impairment. He complained of anxiety, but he did not report panic attacks. There is no evidence of impaired impulse control and the majority of treatment records during this period show he denied suicidal or homicidal ideation. Furthermore, the Veteran was not working, but he was not reporting that this was due to his psychiatric disability, and there is no other evidence of major occupational impairment due to the Veteran's psychiatric disability alone during this period. Accordingly, and based on the evidence noted above, the Board finds that the Veteran's anxiety disorder symptomatology did not result in occupational and social impairment with deficiencies in most areas prior to January 19, 2012, and a rating in excess of 50 percent under Diagnostic Code 9413 is not warranted prior to January 19, 2012. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In this regard, the board notes that although the Veteran also displayed symptoms of PTSD during this period, the rating criteria for PTSD under Diagnostic Code 9411 is the same as the criteria of Diagnostic Code 9413. Granting a separate rating for PTSD for the same symptoms would violate the rule against pyramiding under 38 C.F.R. § 4.14 In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher schedular rating. 38 U.S.C. § 5107 (b); 38 C.F.R. § §§ 4.7, 4.21. Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Period Beginning January 19, 2012 The Board finds that the evidence discussed below shows that the Veteran has demonstrated total social and occupational impairment due to his psychiatric disability since January 19, 2012, under the rating criteria of Diagnostic Code 9413 and 9411. VA treatment records show on January 19, 2012, the Veteran endorsed symptoms of depression, extreme agitation, easy agitation, anger, suicidal and homicidal ideation, and physical violence. They also show complaints of depression and anxiety in April and May 2012. Social Security Administration (SSA) records show private hospitalized treatment for major depressive disorder with psychotic features in January, April, and May 2012. At that time, the Veteran endorsed symptoms of severe depression, confusion, suicidal thoughts, auditory hallucinations, anger, irritability, easy agitation, suicidal/homicidal ideation, and limited insight and judgment. He also was noted to have physically assaulted police officers. A September 2012 VA TBI examiner noted the Veteran had symptoms of mild memory loss, mildly impaired judgment, frequently inappropriate social interaction, occasional disorientation, sensitivity to light, sound and headaches, problems with irritability, impulsivity, as well as verbal and physical aggression. However, the examiner concluded that the Veteran did not meet the criteria for a TBI. In a September 2012 statement, an acquaintance of the Veteran's reported that most of the time the Veteran appeared agitated, irritable, and dysfunctional, and she witness the Veteran have violent arguments with anyone for unjust reasons. She also noted that the Veteran usually indicated that he wished to commit suicide when asked how he was feeling. See September 2012 statement from A.S. In another statement, submitted in March 2013, another acquaintance of the Veteran's noted his severe social isolation, confusion, memory loss, irritability, easy agitation, and lack of motivation. See statement from T.W. On VA PTSD examination in June 2013, the Veteran's symptoms included impulsivity, anger, aggressiveness, anxiety, difficulty establishing and maintaining relationships, and substance abuse. VA treatment records from March 2014-June 2014, show treatment for depression and anxious mood, angry affect, poor insight and judgment, and paranoid ideation. In June 2014, the Veteran made threats to harm others if demands were not met, and the VA police were called on him. On VA examination in June 2014, the Veteran reported that he resided with his mother, but they did not get along, and lived in separate parts of the house. He claimed to be on good terms with his two sons, to keep in touch with his ex-wife, and to have associates, but he preferred to be alone. It was noted in the examination report that the Veteran's file had been flagged since January 2012, as he was known for having disruptive behavior and attacking staff. He was also noted to have symptoms of depressed mood, anxiety, memory loss, impaired abstract thinking, disturbances of motivation and mood, difficulty establishing work and social relationships, difficulty adapting to stressful circumstances, impaired impulse control, and persistent delusions or hallucinations. The examiner noted that the Veteran had an angry and hostile demeanor and verbal outbursts during the interview. The Veteran also noted that he frequently felt angry and confused, saw shadows and creepy people, heard voices, had anger blackouts, and had nightmares several times a week. He also endorsed having aggressive impulses. The examiner concluded that the Veteran's psychiatric disability resulted in occupational and social impairment with deficiencies in most areas. VA treatment records in October and November 2015 show treatment for symptoms of anxiety, depression, suicidal ideation, homicidal ideation, auditory and visual hallucinations, angry affect, problems with crowds and people in general, irritability, extreme anxiety, and paranoia, and psychotic-like complaints. In November 2016, he reported depression, anxiety, auditory and visual hallucinations with commands to do bad things. In December 2016, he reported being suicidal and it was noted that he had a disruptive behavior flag on his record. October 2017 records show the Veteran was angry and cursing at VA staff. By June 2018, the Veteran was on his 7th hospital admission for severe psychiatric symptoms, which included anxiety and suicidal ideation. The October 2020 VA examiner concluded that the Veteran was unable to be around people, is anxious and paranoid, has difficulties with his memory and concentration, and that he could be a threat to others. The examiner found that the Veteran's psychiatric disorder, which he diagnosed as schizoaffective disorder and PTSD, resulted in occupational and social impairment with deficiencies in most areas. The Board also notes that the Veteran was hospitalized numerous times for severe symptoms associated with his psychiatric disability. Moreover, although the June 2014 and October 2020 VA examiners concluded that the Veteran's psychiatric disability resulted in occupational and social impairment with deficiencies in most areas, the Board finds that the symptoms noted during those more nearly approximated total occupational and social impairment. Based on this evidence, and resolving all doubt in the Veteran's favor, the Board finds that the preponderance of evidence shows that the Veteran's anxiety disorder/PTSD and TBI symptomatology more nearly approximates the criteria for a 100 percent disability rating, based on total social and occupational impairment, beginning January 19, 2012. REASONS FOR REMAND Entitlement to a TDIU, prior to January 19, 2012, to include on an extraschedular basis, is remanded. The Veteran is being granted a 100 percent rating for his service-connected anxiety disorder/PTSD and TBI as of January 19, 2012 in this decision. Therefore, he will have a combined disability rating of 100 percent, and the issue of entitlement to a TDIU from January 19, 2012 is now moot. However, the Veteran has reported that he has been unemployable due to his service-connected disabilities since August 2007. See April 2021 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran does not meet the schedular criteria for a TDIU prior to January 19, 2012, even with the grant of the 100 percent rating for anxiety disorder/PTSD and TBI, noted above. Notwithstanding, when the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, a TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. § 4.16 (b). The Board cannot award TDIU on this basis in the first instance because 38 C.F.R. § 4.16 (b) 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 (2001). During a September 2007 VA examination, the Veteran reported that he was working part-time, but he was unable to squat or kneel, and if he stood for more than two hours, his knee would hurt. On VA examination in February 2011, he was unemployed. During a July 2013 VA PTSD examination, the Veteran reported that he was last employed in 2008, and that he was unable to work due to his whole left side being weak from a parachute jump injury. He also reported that he last worked in 2007 or 2008 because his legs and back began to give him difficulty, and his psychiatric medications made him drowsy and mistrustful and gave him extreme paranoia and depression. He also reported being fired three or four times for lack of focus and motivation. In a May 2021 statement, the Veteran reported that he has not worked full-time since 2007, and any additional employment reported on his VA Form 21-8940 is seasonal employment. He also noted that he worked at Tallins as a cook, from May 2008 to September 2008. See May 2021 Report of General Information. There is no medical opinion of record addressing the combined effect of all the Veteran's service-connected disabilities on his ability to work prior to June 26, 2012. The Court has held that in the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In addition, 38 C.F.R. § 4.16 holds that the Board must consider the impact of all of the Veteran's service-connected conditions on his ability to obtain and maintain gainful employment. The Court has also held that VA has an obligation to obtain retrospective medical opinions in instances where there is competent evidence suggesting that a higher rating may be appropriate during a relevant period but insufficient clinical evidence to determine whether such an increase is, in fact, warranted. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008). In light of the evidence noted above, the Board finds it necessary to remand the issue of entitlement to a TDIU prior to January 19, 2012, in order for a VA examiner to provide a retrospective medical opinion as to whether the Veteran was unemployable due to the combined effect of his service-connected disabilities. The Board also notes that the grant of an increased rating for anxiety disorder/PTSD and TBI, contained herein, will impact the Veteran's claim and readjudication by the RO is warranted. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, provide the Veteran's claims file to an appropriate clinician to provide a retrospective opinion regarding the impact of the Veteran's service-connected disabilities on his ability to work for the period prior to January 19, 2012. An in-person examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. If a new examination is warranted, the examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. Based on a review of the claims file, the examiner must, for the period prior to January 19, 2012, provide a functional assessment of the Veteran's service-connected disabilities and his ability to work consistent with his education and occupational experience, and without consideration of his age or non-service-connected disabilities. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. Thereafter, if and only if the VA examiner determines that the Veteran's service-connected disabilities render the Veteran unemployable for any period during the appeal prior to January 19, 2012, refer the claim of entitlement to a TDIU to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extra-schedular basis prior to January 19, 2012. (Continued on the next page) 4. Then readjudicate the Veteran's claim of entitlement to a TDIU rating prior to January 19, 2012. If the claim remains denied, issue an appropriate SSOC, and give the Veteran and his attorney an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.