Citation Nr: 21063506 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-01 231 DATE: October 14, 2021 ORDER Entitlement to a rating of 50 percent, prior to January 9, 2003, for service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 9, 2003 is remanded. FINDINGS OF FACTS 1. The evidence shows that the manifestations of the Veteran's PTSD, prior to November 7, 1996, produced considerable functional impairment. 2. The evidence shows that the Veteran's PTSD, beginning November 7, 1996, have manifested by such symptoms as panic attacks noted to be daily, depression, anxiety, impairment to in establishing and maintaining relationships; more severe impairment has not been shown. CONCLUSION OF LAW For the period prior to January 3, 2003, the criteria for a 50 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2001 and prior to November 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1969 to December 1971. This matter was previously before the Board. The most recent Board decision was in May 2019 where the Board granted an increased rating of 70 percent for service-connected PTSD effective January 9, 2003, granted TDIU effective January 9, 2003, denied an increased rating for service-connected PTSD prior to January 9, 2003. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2021 decision, the Court vacated the portion of the Board's decision denying an increased rating for service-connected PTSD prior to January 9, 2003 and denying TDIU prior to January 9, 2003. The matters were remanded back to the Board for adjudication. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. PTSD The Board notes that in the Court's decision, the Court stated that the Board was to determine whether an increased rating was warranted for the period on appeal as it addressed the relevant evidence of record. Effective November 7, 1996, VA revised the criteria for evaluating mental disorders. Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. Thus, the Veteran's claim must be considered under both the old and the new rating criteria. The old criteria will apply for the entirety of the appeal period, whereas the new criteria apply for the period beginning November 7, 1996. The criteria that were in effect prior to November 7, 1996, stated that, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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 the examination. 38 C.F.R. § 4.126. Under the old general rating formula for psychoneurotic disorders, where there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people and the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment, a 30 percent disability evaluation will be assigned. A 50 percent disability evaluation is for assignment where the ability to establish or maintain effective and wholesome relationships with people is considerably impaired and, by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. When the ability to establish and maintain effective or favorable relationships with people is severely impaired, and there are psychoneurotic symptoms of such severity and persistence that there is severe impairment in the ability to obtain and retain employment, a 70 percent evaluation is appropriate. A 100 percent evaluation requires either that (1) the attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community, or (2) that there be totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities, such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior, or (3) that the veteran be demonstrably unable to obtain or retain employment. 38 C.F.R. Part 4, Code 9411. Effective November 7, 1996, a 30 percent rating is warranted where the disorder is manifested by occupational and social impairment with an 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), and chronic sleep impairment, mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is warranted if it is productive of 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. A 70 percent rating contemplates 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 work like setting); inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation is warranted for a total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communications; 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 or close relatives, own occupation, or own name. Id. The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). The Veteran was first afforded a VA examination in December 1990 and was diagnosed with PTSD. The examiner noted the Veteran suffered from combat nightmares and constant hypervigilance. The Veteran stated that his house is high on a hill, so he is always on the high ground. The Veteran was noted to be tense, angry, and nervous. The Veteran was neatly dressed. In a VA letter dated September 1990 to former Congressman Studds, the Veteran was noted to be receiving treatment for PTSD and was unemployable. The Veteran was also noted to suffer from depression, sleeping difficulties, agoraphobia, anxiety, anger, nightmares, flashbacks, and intrusive thoughts all due to his PTSD. In an August 1991 VA discharge summary, the Veteran stated he would wonder why he survived when so many others did not. See August 1991 VA Discharge Summary. This discharge was from a 6-week treatment for PTSD. At the time of discharge for the PTSD treatment, the Veteran was noted to be anxious, apprehensive, worried, and depressed. The Veteran also did not make eye contact, was guarded and distant, and had some impairment of concentration. The Veteran submitted an affidavit from his son. Here, the son stated that he witnessed the Veteran experience impaired ability to maintain effective family relationships, exaggerated startle reflex, detachment, disorientation to time, place, and people, physical violence, inability to handle everyday stress, paranoia, avoidance of public space and crowds, public outbursts of anger, suicidal thoughts, near total isolation, impaired ability to manage household tasks, inability to drive, and difficulty maintaining a conversation. See December 2017 Affidavit G.S. The Veteran's son, G.S., lived with him until 1997 and continued to see him thereafter. G.S. stated that he remembered his father had a temper and was always angry. He witnessed his father when there were loud noises that would cause him to hide and become disoriented. While living with the Veteran, G.S. stated that the Veteran could not handle everyday stress and would become anxious. The Veteran's wife, M.S., also provided an affidavit. She has known the Veteran since 1984, and they were married in 1999. Here, M.S. states she has witnessed the Veteran's inability to maintain effective family relationships, anxiety, nightmares, inability to handle everyday stress, paranoia, hypervigilance, inability to maintain social interactions for extended periods of time, near total social isolation, depression, and disorientation to time and space. See December 2017 Affidavit M.S. The Board acknowledges the December 1990 VA examination failed to report the severity of the Veteran's PTSD. This examination diagnosed the Veteran with PTSD but failed to address the frequency and severity of his symptoms. The examiner listed his symptoms as outlined above. The Board notes that the son's statements in the affidavit apply to period on appeal prior to November 7, 1996 as the son lived with the Veteran until 1997. The son's testimony as to the Veteran's impaired ability to maintain effective family relationships is found to meet the severity of a 50 percent rating. As for the wife's affidavit, considered with the evidence of record, Board finds it supports an increased rating of 50 percent for this period on appeal. It is noted that the wife did not marry the Veteran until 1999 but had known the Veteran since 1984 when they attended school together. The wife did testify, just as the Veteran's son had, that the Veteran's ability to maintain effective relationships was impaired. While neither the son nor the wife testified as to the severity, the Board finds the Veteran was considerably impaired. The Board does not find the evidence supports a severity of severely impaired, as he managed to continue a relationship with both his son and his now wife during this period on appeal. As the December 1990 VA examiner failed to provide the Veteran's severity of his diagnosed PTSD, the Board finds the affidavit provided by the son of the Veteran holds more weight as to the severity of the Veteran's PTSD during the period on appeal. The Board finds the evidence does not support a finding that the Veteran was severely impaired to establish and maintain effective or favorable relationships with people, and there are psychoneurotic symptoms of such severity and persistence that there is severe impairment in the ability to obtain and retain employment. The Board notes that there is a statement stating the Veteran is unemployable. The Board finds this single conclusion is inadequate to meet the requirement that the Veteran's psychoneurotic symptoms are so severe that he cannot obtain and retain employment. Furthermore, the Board finds there is no evidence to support that the Veteran was completely isolated from the community, and had totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities, such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior, or that the Veteran is unable to obtain or retain employment. Furthermore, during this period on appeal, the Veteran continued his relationship with his current wife which led to their marriage in 1999. While the Board finds the evidence supports a finding that the Veteran's ability to establish or maintain effective and wholesome relationships with people is considerably impaired, it does not establish that his ability was severely impaired to meet a higher rating. Likewise, in view of the current criteria, the record does not reflect that the Veteran's PTSD is productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood, nor does it produce total social and occupational impairment. Specifically, the evidence does not establish that the Veteran had the inability to establish or maintain relationships nor is it contended in the record. While G.S. stated that he witnessed the Veteran suffer from suicidal thoughts, the record is otherwise devoid of any evidence to support it. Furthermore, the Veteran does not contend that he suffered from suicidal or homicidal ideation. The Board finds there is no evidence or contention that the Veteran suffers from memory loss, near-constant panic attacks, or neglect of appearance. The Board does note that both M.S. and G.S. contend that the Veteran disoriented to time and place. The Board finds the evidence does not support this contention. There is no evidence of disorientation in the claims file nor do M.S. or G.S. provide information regarding this contention. Even if the Board finds the Veteran suffers from disorientation to time and place, the evidence does not support a higher rating based solely on disorientation to time and place. As such, a rating in excess of 50 percent is not warranted. Thus, a disability rating of 50 percent, but no higher, prior to January 9, 2003, is warranted for the Veteran's PTSD. To this extent, the appeal is granted. See 38 U.S.C. § 5107(b). REASONS FOR REMAND TDIU As noted above, the Veteran was granted TDIU effective January 9, 2003. The Veteran appealed this decision to the Court. The Court vacated the Board's denial of TDIU prior to January 9, 2003 and remanded the case back to the Board for adjudication. In this case, the Veteran is currently in receipt of service connection for PTSD with a rating of 50 percent prior to January 9, 2003 and service connection for diabetes mellitus with a rating of 20 percent effective December 16, 2001. Consequently, he is not eligible for TDIU on a schedular basis, and, therefore, the only question for the Board is whether TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b). At the outset, the Board acknowledges that it may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001). Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure and follow a substantially gainful occupation, and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director of Compensation Service to consider entitlement on an extraschedular basis. Id.; 38 C.F.R. § 4.16(b). In the December 2017 vocational assessment, the examiner determined that the Veteran's PTSD impacted his ability to work. Specifically, the examiner found the Veteran's PTSD only would prevent the Veteran from securing and following a substantially gainful occupation based on the severity of his symptoms. See December 2017 Vargas Vocational Consulting Vocational Assessment. Furthermore, the Veteran worked for a friend's construction company sporadically from 1990 to 1998. The Board notes the Veteran attempted to volunteer on a few occasions. In light of the above and considering the Veteran's employment history and evidence of record, the Board finds that there is sufficient evidence for referral under 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the application for TDIU to the Director of Compensation Service for a determination as to whether the Veteran is entitled to a TDIU on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). A full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be provided. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.