Citation Nr: 21063338 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-31 072 DATE: October 14, 2021 ORDER As of May 11, 2016, an increased disability rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder is granted. REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. FINDING OF FACT As of May 11, 2016, the severity, frequency, and duration of the Veteran's mental health symptoms more closely approximated occupational and social impairment with deficiencies in most areas and did not more closely resemble total occupational and social impairment. CONCLUSIONS OF LAW As of May 11, 2016, the criteria for a disability rating of 70 percent, but not higher, for posttraumatic stress disorder have 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 CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1969 until his honorable discharge in June 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by a Regional Office of the United States Department of Veterans Affairs (VA), which continued a disability rating of 50 percent for the Veteran's service-connected posttraumatic stress disorder (PTSD). In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. After transfer of the case to the Board, VA associated new and relevant documents with the Veteran's claims file. Pursuant to 38 C.F.R. § 20.1305(c), this evidence "must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral." On August 17, 2021, the Board sent the Veteran and his representative a letter informing them of the Veteran's right to waive initial consideration of these documents by the VA Regional Office. In a September 9, 2021 correspondence, the Veteran waived consideration in the first instance by the VA Regional Office. Therefore, the Board will proceed to adjudicate the claims. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A claim for an increased rating is a new, distinct claim. See Suttman v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for an increase is "based upon facts different from the prior claim"). The Board is to consider each disability in relation to the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999); 38 C.F.R. § 4.1. The Board must also determine if it is factually ascertainable that the disability worsened within one year preceding the filing of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic codes (DC) are assigned to individual disabilities. Diagnostic codes provide rating criteria specific to a particular disability. If two diagnostic codes are applicable to the same disability, the diagnostic code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. Rating Criteria Posttraumatic Stress Disorder Under the General Formula for Mental Disorders, 38 C.F.R. § 4.130, 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). The symptoms listed in the VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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, 11418 (Fed. Cir. 2013). The General Formula, 38 C.F.R. § 4.130, DC 9411, provides, in pertinent part, as follows: Rating (%) 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. 100 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. 70 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. 50 38 C.F.R. § 4.130, DC 9411 does provide for ratings lower than 50 percent. In this case, however, the Veteran's PTSD is rated at 50 percent. Thus, an analysis of the ratings lower than 50 percent is unwarranted, absent legal and factual bases to issue a reduction in the Veteran's current rating. See 38 C.F.R. § 3.344. Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. Id. Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vazquez-Claudio, 713 F.3d at 11617. Analysis The Veteran has received care from VA facilities to address his PTSD. His VA medical records document that he was treated by his VA psychiatrist on May 10, 2016, one day before filing his claim for an increased disability rating. On that date, he reported experiencing nightmares and flashbacks approximately one to two nights a week related to his experiences in Vietnam. He reported mild feelings of sadness, anhedonia, and depressed mood. He denied suicidal or homicidal ideations, auditory or visual hallucinations, and delusional thinking. He reported ongoing mild generalized anxiety symptoms. He denied recent panic episodes. He reported his temper issues were under adequate control with some mild temper issues remaining. His VA psychiatrist documented no abnormal physical observations. At the Veteran's request, his treating VA psychiatrist authored a letter dated May 10, 2016, addressing the current severity of his PTSD and current VA disability rating. The VA psychiatrist outlined the Veteran's current medical conditions, discussed his military experience leading to his PTSD, and opined that "[h]is PTSD symptoms have greatly impacted his life in many areas, including work, personal relationships, and family." According to the VA psychiatrist, the Veteran reported currently experiencing nightmares approximately twice per week, moderate feelings of sadness, anhedonia, depressed mood, and generalized anxiety. The VA psychiatrist offered his opinion that "the amount and duration of his impairment would seem to justify a higher percentage rating . . . than 50% the Veteran currently receives." In a September 11, 2017, correspondence authored by the Veteran's treating VA staff psychologist, the VA psychologist reported that the Veteran experienced problems with social and occupational functioning, including anger, temper, and irritability issues, having an abrasive demeanor toward friends and family, and obsessive-compulsive behaviors that interfered with his functioning, such as checking locks and doors throughout the day and night. In December 2017, the Veteran submitted a correspondence in which he discussed his current PTSD symptoms and how they affected his life. He reported experiencing panic attacks often, feeling depressed, avoiding stimuli that reminded him of his military service, such as movies and television shows, avoiding local VA clubs, fireworks, and small spaces. He stated he had an inability to show love and affection toward others, he could not read people's emotions, and he preferred to be alone. He stated he was forgetful, losing his train of thought in sentences. He remained hypervigilant, checking locks and doors. He experienced an inability to focus. He startled easily at noises, such as thunder or barking dogs. He experienced lack of trust, closeness with others, including friends and family. His emotional detachment manifested in anger, irritability, and outbursts. The Veteran received a VA examination on January 11, 2018. The VA examiner reported his symptoms included anxiety, chronic sleep impairment, disturbance of motivation/mood, that he had difficulty establishing and maintaining effective work and social relationships, and that he had difficulty adapting to stressful circumstances. No abnormal behavior, to include speech or thought, was observed. The examiner opined that the Veteran's symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In a January 26, 2018, correspondence, the Veteran's VA staff psychologist reported the Veteran's symptoms included depressed mood, anxiousness, suspiciousness, panic attacks more than once a week, chronic sleep impairment, short- and long-term memory issues, a flattened affect, disturbances in mood/motivation, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, and obsessional rituals that interfered with routine activities. Overall, the Veteran's medical records generally document the foregoing symptoms. Notably, the Veteran has not experienced suicidal or homicidal thoughts, an inability to dress, eat, or properly care for himself, hallucinations or delusions, or impaired judgement or thinking to the point it resulted in total occupation or social impairment. The evidence does not warrant a rating of 100 percent for his PTSD in any reasonable respect based on the evidence of record. Nevertheless, the Board finds that a rating of 70 percent is warranted as of May 11, 2016, the date the Veteran filed his claim for an increased rating, based on a holistic view of his symptoms and how they affect him. The most probative evidence of record addressing the effects of his symptoms is a well-written statement submitted by the Veteran's wife on February 1, 2018. In her letter, the Veteran's wife stated that the Veteran's symptoms have led to numerous arguments, such that he must remain in control, particularly when it came to his employment choices. As to familial relationships, she explained he cannot relate to others. He has no close relationships in the family, which is in contrast to his lifestyle prior to his military service. He exhibits inconsistent behavior toward her and their son, such that they walk on eggshells around him. He has a need to feel in control. She stated that he makes quick and irrational decisions without considering the consequences. He has periods of disjointed and irrational thinking, which makes it hard to have a conversation with him. His mood can change instantly. He reacts negatively to her, which can last for days to months. He cannot work around others in his negative emotional state. He will go through moments of having no motivation, to the point he has to be prodded to bathe and dress himself. She stated he will sometimes leave the house unbathed and awfully dressed. He will keep to himself, which has caused him to make inappropriate comments in public. He is often irritated, which results in angry outbursts at her. She concluded by stating that these symptoms have worsened over the years that she has spent with him. Although the January 2018 VA examiner opined that the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity, the Veteran's wife's credible statements lead the Board to find that his symptoms more closely resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran's symptoms have resulted in strained relationships with friends and family; he has an inability to maintain close relationships. His wife has explained how she is unable to carry on a conversation with the Veteran without him losing his train of thought or becoming angry and irritable. He has demonstrated a lack of interest in things, including daily activities such as bathing and dressing. Accordingly, the Board concludes that a disability of 70 percent for the Veteran's PTSD is warranted as of May 11, 2016, the date he filed his claim for an increased rating. The Board has considered whether the evidence of record supports an increased rating for the year preceding the Veteran's filing of his claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Board finds it does not. The Veteran received VA medical treatment for his PTSD for the months preceding his claim for an increased rating. During an August 2015 mental health assessment, the Veteran stated he experienced a decrease in his irritability and was sleeping well. In a September 2015 mental health assessment, the VA psychiatrist observed no abnormal thoughts or behaviors. At that time, the Veteran was moderately depressed and had concerns about lack of affection and his temper. During a December 2015 mental health assessment, the Veteran reported no significant changes related to his PTSD since his September 2015 assessment. He spent the holidays with friends and family. A February 2016 mental health assessment documented the Veteran slept seven to eight hours per night, but he did experience nightmares approximately twice per week. He reported moderate sadness and mild anxiety. For the year preceding the Veteran's filing of his claim for an increased rating, the evidence does not indicate his PTSD symptoms resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran denied suicidal ideations, there a lack of sufficient evidence for the Board to conclude he engaged in obsessional rituals that interfered with routine activities. His VA psychiatrist did not observe, nor did the Veteran report, illogical speech, spatial disorientation, or neglect of personal appearance and hygiene. Although the Veteran's symptoms reasonably affected his social relationships, it did not result in an inability to function independently, appropriately, or effectively. Rather, his irritability was his most significant symptom that contributed to a lessened ability to communicate with his friends and family. Outstanding Francway Challenge The Board needs to address an outstanding issue in the interest of completeness. See Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010) (Board must assess issues of potential prejudice). On May 11, 2021, VA received a correspondence from the Veteran's representative in which he raised a "Francway challenge" in relation to the October 2016 VA examiner who assessed the Veteran's PTSD. In Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019), the Federal Circuit Court held, "[O]nce the veteran raises a challenge to the competency of the medical examiner, the presumption [of competence] has no further effect, and, just as in typical litigation, the side presenting the expert (here[,] the VA) must satisfy its burden of persuasion as to the examiner's qualifications." The Federal Circuit made clear that when a claimant requests information about the qualifications of a medical professional who has provided an opinion, the claimant is entitled to such information in almost all situations. Id. (citations omitted). The Veteran's May 11, 2021, correspondence requested the qualifications, to include a curriculum vitae, job performance reviews, and certifications, of the October 2016 VA examiner. Generally, the Board would have remanded the Veteran's claim for an increased rating for his PTSD in order to comply with Francway. In this case, however, remand is unnecessary. First, it was made clear during the Veteran's May 2021 Board hearing that he was not seeking a disability rating of 100 percent, only 70 percent. May 2021 Board Hearing Transcript, at 11 ([Veteran's Representative]: "We are not arguing for a 100 percent direct rating increase. I don't think that is appropriate either."); see also June 2018 VA Form 9 (seeking a 70 percent disability rating). As the Board has awarded the Veteran an increased disability of 70 percent since May 11, 2016, he has received the maximum benefits sought. As such, there is no prejudice that results to the Veteran. Second, the Board was cognizant of the Veteran's Francway challenge during its foregoing analysis of his increased disability rating. Hence, the Board chose to ignore the October 2016 VA examination and opinion within the analysis. Since the Board did not rely on the October 2016 VA examination or opinion, there is no prejudice that results to the Veteran by adjudicating his claim. The Veteran's representative likewise recognized that if the Board granted his request for an increased disability rating, then his Francway challenge would be moot. May 2021 Board Hearing Transcript, at 5 ([Veteran's Representative]: "The way I always like to look at it is, of course it would be non-prejudicial to go ahead and just see if Your Honor agrees with us with our main allegation. . . . So, it would be non-prejudicial to just go ahead and say, I agree with you guys. You know. That would be that. . . . But it would be non-prejudicial to go ahead and see if Your Honor agrees with us, that the whole rest of the record just allows you to grant what we are looking for."). To this extent, one could reasonably foresee this as a waiver of any argument of prejudice based on the Board's decision to grant the full benefits sought. Nevertheless, the Veteran's claim for an increased rating includes a claim for a total disability rating based on individual unemployability (TDIU), as the Veteran's representative recognized. Id. at 3. The Board, as discussed below, is unable to adjudicate that claim because the record is underdeveloped In sum, as the Board has granted the Veteran's claim for an increased rating of 70 percent for his PTSD, the highest rating specifically sought by the Veteran. In doing do, the Board has not considered the challenged October 2016 VA examination or opinion, and, thus, there is no prejudice that results to the Veteran on this claim in relation to his Francway challenge. Therefore, remand on this claim is not required. Marciniak v. Brown, 10 Vet. App. 198, 201 (1997) (remand unnecessary "[i]n the absence of demonstrated prejudice"). But to the extent a claim for TDIU remains outstanding, remand is required to comply with Francway. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability is remanded. A request for total disability evaluation based on individual unemployability is "part and parcel" of a claim for an increased disability rating and is not a separate freestanding claim itself but rather an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule. Rice v. Shinseki, 22 Vet. App. 447, 45355 (2009) (TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating). In this case, the Veteran sought an increased rating for his PTSD and has presented evidence of unemployability. Therefore, the claim for TDIU benefits is part of his claim for an increased disability rating for his PTSD. See id. The Board finds further development must occur with respect to the claim for TDIU benefits, to include compliance with Francway as discussed previously. Therefore, remand is warranted on this claim. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Provide the Veteran with a notice regarding what is necessary to substantiate a claim for entitlement to a total disability rating based on individual unemployability (TDIU) and request that he complete and return a formal application for entitlement to TDIU and an authorization to obtain information from his previous employers. If the Veteran returns any form which is incomplete or contains insufficient information, he must be informed of such and be given the opportunity to provide a complete one. The Regional Office should complete any additional, reasonable, and necessary developmental action. 3. The Regional Office or the local VHA facility should address the Veteran's request for additional information regarding the background of the examiner who conducted the 2016 mental health examination. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.