Citation Nr: 21061303 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 10-27 867 DATE: October 1, 2021 ORDER An initial 30 percent evaluation for the period of December 27, 2004 to April 2, 2007, for posttraumatic stress disorder (PTSD) with memory loss is granted, subject to the laws and regulations governing payment of monetary benefits. REMANDED Entitlement to an initial evaluation in excess of 30 percent for PTSD with memory loss for the period of December 27, 2004 through April 2, 2007, and in excess of 70 percent thereafter, is remanded. Entitlement to a total disability based on individual unemployability due to service-connected disabilities prior to April 3, 2007, is remanded. FINDING OF FACT For the period on appeal from December 27, 2004 to April 3, 2007, the Veteran's PTSD with memory loss symptoms have more nearly approximated a 30 percent evaluation for 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). CONCLUSION OF LAW The criteria for a rating of 30 percent for PTSD with memory loss from December 27, 2004 to April 3, 2007, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1957 to November 1960. In a March 2020 Board decision, the Veteran was granted a 70 percent rating for PTSD with memory loss for the period on appeal prior to August 21, 2012. He was denied a rating in excess of 70 for the entirety of the appeal period. The Veteran appealed the March 2020 Board decision to the U.S. Court of Appeals for Veterans Claims (Court or CAVC). In May 2021 the Court issued a Joint Motion for Partial Remand (JMPR), in which the March 2020 Board decision pertaining to the issue of a rating in excess of 70 percent for PTSD with memory loss was vacated and remanded for further development. In the JMPR, it was noted that the Board had found the issue to be on appeal from a September 2009 rating decision. However, the Court indicated that in doing so the Board had not addressed the finality of the September 2005 rating decision which had granted the Veteran service connection for PTSD with memory loss and assigned an initial 10 percent evaluation. Thus, while on remand the Board was instructed to determine the proper period on appeal and then readjudicate the rating claim based on the evidence in the appropriate time period. This decision is being written in accordance with the May 2021 JMPR. As instructed from CAVC, the Board is to first determine the proper period on appeal, to include discussing the finality of a September 2005 rating decision. In a September 2005 rating decision, the Veteran was granted service connection for PTSD with memory loss with a 10 percent evaluation effective December 27, 2004, the date that VA received the Veteran's claim. The Veteran did not explicitly appeal the rating decision pertaining to the 10 percent evaluation of his PTSD. However, in an October 2005 statementnoted as a notice of disagreement with the Veteran's head injury claim denied in the September 2005 rating decision as wellthe Veteran indicated that his memory loss should be separately evaluated and that he should be rated as 100 percent. The Board reflects that the Veteran's memory loss is already service connected as associated with his PTSD and it appears that the Veteran is seeking a 100 percent evaluation in connection with that disability. Accordingly, the Board finds that the October 2005 statement is a notice of disagreement with the initially assigned evaluation for PTSD with memory loss was received within one year of the September 2005 rating decision and the Board therefore has jurisdiction over the entire initial rating period for PTSD. See Szemraj v. Principi, 357 F. 3d 1370, 1373 (Fed. Cir. 2004). As a final initial matter, as the Veteran has only been awarded a TDIU for the period beginning April 3, 2007, and the Veteran explicitly indicated that he wished to have a 100 percent evaluation, the Board has also taken jurisdiction over the TDIU claim prior to April 3, 2007, at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that an initial evaluation in excess of 30 percent for PTSD with memory loss for the period of December 27, 2004 through April 2, 2007, is warranted, although any initial evaluation in excess of 30 percent for that period or in excess of 70 percent for the period beginning April 3, 2007, and the TDIU claim are remanded as discussed below. The Veteran asserts that his currently assigned ratings for his PTSD do not accurately reflect the severity of his disability for the periods on appeal. He contends that his PTSD was worse than the initial 10 percent evaluation assigned. His PTSD is currently rated as 10 percent for the period on appeal from December 27, 2004 to April 3, 2007. The Veteran's PTSD is rated under DC 9411, which is rated under the General Rating Formula for Mental Disorders and provides the following evaluations. 100 percent: 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. 70 percent: 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. 50 percent: 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. 30 percent: 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), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 10 percent: 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 continuous medication. 38 C.F.R. § 4.130, DC 9411. The Veteran underwent a VA examination in July 2005, at which he reported that he had never been treated by a psychiatrist, been prescribed psychotropic medication, participated in counseling, or been hospitalized for any mental health problems. Pertaining to social and family history, the Veteran relayed that he was currently married to his fourth wife of three months. His current marriage was reported to be "going really good." He was married to his first wife for 11 years and explained that they had divorced because they were too young when they got married and were unable to make it work. He had been married to his second wife for 11 months and said they divorced because they were incompatible. He had been married to his third wife for four months and stated that they had divorced because she suffered from bipolar disorder. He had four children, one of which was deceased. He reported that he was not close with his three remaining children, purportedly because their mother blamed him for the divorce. He stated that he has many close friends at church and that he attends church almost daily. He is very involved with a volunteer program at his church where they help to place animals from the animal shelter in homes. He noted that he enjoys spending time with his current wife's grandchildren, going on the internet, and reading. Pertaining to the examination of the Veteran's mental status, the examiner began by noting that aside from missing the correct date by two days, the Veteran was alert and fully oriented. The Veteran was unable to recall any objects after a delay of a few minutes. He was given a second series of three objects and recalled only one of them after a delay. He made two errors on serial 7s but completed serial 3s without any mistakes. He correctly recalled four digits forward and three digits in reverse. The examiner indicated the Veteran to have the capacity to complete activities of daily living. The Veteran did not manifest inappropriate or bizarre behavior during the interview. His speech was normal for rate and volume, and it was clear, coherent and goal directed. There was no evidence to suggest that the Veteran was responding to internal stimuli. The Veteran denied experiencing auditory or visual hallucinations. He did not endorse delusions of reference or bizarre delusional beliefs. He denied paranoia or grandiosity. He exhibited a mildly restricted range of affect. However, he described his mood as "good." The Veteran then went on to comment "I am depressed all the time a little bit." He said that the depression was precipitated by the current war in Iraq, as well as his volunteer work where he helps to find homes for animals in the local shelter. He described working with the animals as both rewarding and upsetting. The Veteran stated that his depression began during his childhood because he felt unwanted by his parents. The Veteran denied anhedonia. He stated that he sleeps five to six hours per night and wakes up almost every hour. He sleeps approximately an additional three hours during the day. He reported that his energy and appetite were good. He complained of concentration problems. The Veteran stated that his self-esteem was positive. He denied any current suicidal or homicidal ideation and denied any past attempts to harm himself. He denied experiencing anxiety, panic, compulsions, and obsessions. Pertaining to the assessment of the Veteran's PTSD, the examiner noted that the Veteran reported having intrusive memories three days during the last week of a robbery that had occurred while he was in the army. On average, the memories lasted about a minute. He estimated that he had nightmares about people trying to harm him on a daily basis during the last week. On occasion his nightmares awaken him, and he has trouble returning to sleep. He denied flashbacks. He reported that twice during the last week, he saw people who looked dangerous, which reminded him of the robbery. He was vague about whether he experienced any physical symptoms when he was reminded of the robbery. The Veteran reported that he makes a daily effort to avoid thinking and talking about the trauma from the robbery. He explained that he avoids country bars because that is where he met his attackers who had lured him outside and then attacked and robbed him. The Veteran denied anhedonia. He indicated that he always experiences a sense of detachment, although he does feel close to his wife and a number of people at his church. He denied a restricted range of affect. He was uncertain whether he experienced the sense of a foreshortened future. The Veteran reported sleeping five to six hours per night, however, he wakes up approximately every hour. He sleeps an additional three hours during the day. He denied any recent anger. He stated that he had trouble concentrating about half the time during the last week. He indicated that he was always hypervigilant, even at home. He estimated that he had three exaggerated startle responses during the last seven days, which caused him to feel jumpy. The examiner's impression of the Veteran's PTSD was that it manifested with symptoms that appeared to be mild as the Veteran was functioning at a high level. He reported his current marriage as positive, and while he is distant from his own children because they sided with their mother during the divorce, he is close with his current wife's grandchildren. Additionally, he also stated that he is very active in his church and has a number of friends at church. Prior to April 3, 2007, and other than the July 2005 VA examination, the Veteran's VA treatment records reflect that the Veteran was seen for mental health treatment only on April 6, 2006. He was seen for a psychiatry group PCT orientation, where he was noted to be in need of PTSD psychotherapy and/or medication management. He underwent psychological testing to aid in the clarification and treatment planning for the PCT clinic. The results of the testing indicated that the Veteran most likely experienced a traumatic event in the past, which continued to distress him and produce episodes of anxiety. The Veteran endorsed difficulties with both intrusive and avoidant symptoms. He also endorsed concerns with sexual behavior that may be viewed as dysfunctional or problematic. While not reported to be specifically related to the Veteran, it was noted that individuals with similar profiles as the Veteran, have generally reported that the traumatic event that they experienced in the past had left them changed or damaged in some fundamental way. These individuals indicate that their social re1ationships offer them little support. Their family relationships are likely to be either distant or combative, while their friends are generally seen as unavailable or not helpful when needed. Such individuals may be quick to feel that they are being treated unfairly and may easily believe that there is a concerted effort by others to undermine their interests. Additionally, the thought content of these individuals is likely to be marked by elements of inflated self-esteem, expansiveness, or grandiosity. Based upon the foregoing, a rating of 30 percent is warranted for the Veteran's PTSD with memory loss for the period on appeal from December 27, 2004 to April 3, 2007. The Veteran is shown to have an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he generally functioned satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. In light of such, the Board finds that an initial 30 percent evaluation for PTSD with memory loss is warranted for the period of December 27, 2004 through April 2, 2007. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Board does not reach any further decision on whether an initial evaluation in excess of 30 percent for the period of December 27, 2004 through April 2, 2007, or in excess of 70 percent for the period beginning April 3, 2007, is warranted at this time. The Board also does not reach any further decision on entitlement to TDIU for the period prior to April 3, 2007, at this time. Those issues are addressed further below. REASONS FOR REMAND The Veteran had previously been granted a rating of 70 percent in the March 2020 Board decision, which was effective April 3, 2007. The 70 percent grant was not disturbed by CAVC in the May 2021 JMPR. However, as previously noted, in addition to the determination of the period on appeal, the entire appeal period is to be readjudicated. As such, the issues of an initial evaluation in excess of 30 percent for the period of December 27, 2004 through April 2, 2007, or in excess of 70 percent for the period beginning April 3, 2007, and entitlement to TDIU prior to April 3, 2007, must be readjudicated. In the August 2021 Appellate Brief submitted by the Veteran's representative, it is argued that the Veteran's PTSD has continued to progress beyond 70 percent over time. The Veteran's representative requested that if a grant could not be granted at this time, that a remand be provided to establish the Veteran's symptoms for PTSD. The Veteran last underwent a VA PTSD examination in May 2016, which the Board finds to be far enough removed to warrant a remand to determine the current severity of the Veteran's PTSD. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The TDIU issue is intertwined with the remanded PTSD ratings issue and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's file VA treatment records from August 2017 to present. 2. Schedule the Veteran for a VA mental health examination to determine the current severity of his PTSD with memory loss and its effect on his social and occupational functioning. The claims file must be made available to and reviewed by the examiner. The examiner should indicate all symptomatology associated with the Veteran's psychiatric disability and indicate the impact of such on his social and occupational functioning. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claims for an initial evaluation in excess of 30 percent for PTSD with memory loss for the period of December 27, 2004 through April 2, 2007, and in excess of 70 percent for the period beginning April 3, 2007, and entitlement to TDIU for the period prior to April 3, 2007. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.