Citation Nr: 21061712 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 12-26 283 DATE: October 5, 2021 ORDER A rating of 50 percent, but no more, prior to February 21, 2019 for posttraumatic stress disorder (PTSD) is granted. A 100 percent rating for PTSD for the period from February 21, 2019 and thereafter is granted. REMANDED Entitlement to a total disability rating based on individual unemployability, prior to February 21, 2019, is remanded. FINDINGS OF FACT 1. Prior to February 21, 2019, the Veteran's psychiatric disability has been characterized by symptoms as: flattened affect; circumstantial, circumlocutory speech, with impaired insight and judgment, occupational and social impairment with deficiencies in most areas has not been shown. 2. From February 21, 2019 and thereafter the Veterans psychiatric disability is manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, but no more, for posttraumatic stress disorder (PTSD) prior to February 21, 2019, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 2. The criteria for a rating of 100 percent, for PTSD for the period from February 21, 2019 and thereafter, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from January 1966 to November 1968. The Veteran served in Vietnam and was awarded a Purple Heart. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an increased rating for PTSD for the period prior to October 23, 2020. As an initial matter, the Board notes that the Veteran was granted a 100 percent disability rating for his service-connected PTSD from October 23, 2020. However, the evidence of record shows that a rating of 100 percent is warranted for the period from February 21, 2019 and thereafter based on the February 21, 2019, VA examination. Therefore, his currently assigned 100 percent rating should begin on this date. Thus, the only question remaining is whether a rating in excess of 30 percent is warranted for the period prior to February 21, 2019. In this regard, the Veteran's PTSD was rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides the general rating formula for mental disorders. After a review of the evidence, the Board finds that a rating of 50 percent is warranted prior to February 21, 2019. Under the applicable diagnostic criteria, a 30 percent rating is warranted 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), 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). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned for 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. Id. A 70 percent rating is assigned 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. Id. Finally, 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; memory loss for names of close relatives, own occupation, or own name. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Based on the evidence of record, a 50 percent rating more closely approximates the severity of the Veteran's PTSD. Specifically, during this period, the record indicates that the Veteran experienced symptoms of flashbacks, nightmares, anxiety, hyper social, difficulty sleeping, and avoids social situations. Additionally, an April 2013 statement from the Veterans psychiatrist revealed that the Veteran experienced symptoms of flattened affect, circumstantial, circumlocutory and other language irregularities, along with impaired insight and judgment. The Board notes the Veterans 2014 Board testimony that he has trouble staying in contact with people, struggles to keep the relationship with his children, can't stay on task, and his memory is off. During a September 2018 evaluation, the Veterans physician noted that the Veteran occasionally becomes irritable, socializes with only a few people in Vancouver and his children. The Veteran reported that on a typical day he gets up at 7 am, cleans his house, has coffee, and goes to the grocery store. Additionally, he reported that he visits his son, walks, then watches television. During his mental status examination, the Veteran exhibited notable word finding difficulties and mild to moderate psychomotor restlessness. After a review of the Veterans PTSD symptoms, the physician stated that apart from irritability, he has had no nightmares, but has frequent flashbacks which tend to be triggered by loud sounds and in particular helicopters. The physician also stated that the Veteran tends to avoid crowds, has a moderate startle response, had fleeting suicidal thoughts about two weeks before appointment, frequent flashbacks, and tends to avoid crowds. However, the Board finds that the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 50 percent prior to October 23, 2020. Specifically, as discussed above, the evidence of record reflects that the Veteran exhibits symptoms of flattened affect, circumstantial, circumlocutory, and other language irregularities. Based on the Veterans testimony and medical records, the evidence also shows that the Veteran experiences impairment of short and long term memory as well as difficulty in establishing and maintaining social relationships. Further, the Board finds that while the Veteran stated that he has at times had fleeting suicidal thoughts, the medical evidence indicates that the Veteran had only sporadic reports with no intent or plan. Therefore, the Board finds that the Veterans symptoms more closely approximate the criteria for a 50 percent disability rating. Additionally, the evidence of record does not show that the Veteran has difficulties in most areas, has symptoms such as suicidal ideation, near continuous panic of depression affecting the ability to function independently, neglect of personal appearance or hygiene, or the inability to establish and maintain effective relationships which is required for a rating of 70 percent disabling. In fact, the Veteran denied suicidal or homicidal ideations during a September 2018 office visit. Further, during his evaluation, the Veteran was alert, casually dress, and stated that he socializes with a few people and his children. As such, there is not sufficient evidence that the Veteran's ideations are of the severity and frequency to cause the level of occupational and social impairment associated with a higher disability rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). For the foregoing reasons, a 50 percent is warranted for the period prior to February 21, 2019 and a 100 percent rating is warranted from February 21, 2019 and thereafter. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 21, 2019 is remanded. Based upon the evidence of record, the Board finds that a remand is required for review of the Veteran's appeal, in view of the changes to his disability rating for PTSD, to include whether referral of the Veteran's claim to the Director of Compensation and Pension Service to determine if TDIU on an extraschedular basis. Specifically, the Board notes that the Veteran submitted a private opinion in July 2014 where the physician stated that the Veteran is totally disabled at this stage because of his multiple medical issues. The physician noted that the Veteran has evidence of possible pseudotumor in his brain and possibly has Lewy body disease or another neurodegenerative process of which has not yet been diagnosed. The physician further stated that the Veteran is markedly disabled by mental health issues and requires ongoing support from a consulting psychiatrist. Additionally, the Veteran testified during his July 2014 Board hearing that he has had "about 20 jobs throughout his life including fishing and insurance." He testified that he has done his jobs well at times and other times it's been really tough to do the simplest tasks. For example, he stated that he couldn't work at McDonalds because he couldn't stay on task and would forget what he was doing. The Veteran also testified that his balance and memory is off, and he lacks the ability to take care of himself. Further, the Veteran stated that he cannot hold a job because of his PTSD symptoms and his memory ability to complete tasks. Therefore, a referral for extraschedular TDIU consideration is warranted. The matters are REMANDED for the following action: 1. The RO should consider entitlement to TDIU based on the Veteran's new disability ratings, to include whether the appeal should be sent to the Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16 (b). B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica