Citation Nr: 21065521 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-35 668A DATE: October 26, 2021 ORDER Entitlement to a disability rating of 70 percent for posttraumatic stress disorder (PTSD) prior to June 13, 2019 and from August 1 to August 22, 2019 is granted. REMANDED Entitlement to a rating in excess of 30 percent for tinea pedis (claimed as fungus of the feet) is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT Prior to June 13, 2019 and from August 1 to August 22, 2019, the severity, frequency, and duration of the Veteran's symptoms more closely approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW Prior to June 13, 2019 and from August 1 to August 22, 2019, the criteria for a disability rating of 70 percent for PTSD were 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1975 to November 1977. This matter is on appeal to the Board of Veterans' Appeals (Board) from December 2014 and July 2015 rating decisions of a regional office of the Department of Veterans Affairs (VA). Increased Rating PTSD Finality Issues and Period on Appeal In establishing the rating period on appeal, a determination must be made as to whether prior decisions addressing the issue on appeal are final. A claim remains pending where VA fails to fulfill a statutory duty under 38 C.F.R. § 3.156(b) to determine the character of evidence received within the one-year appeal period following issuance of a rating decision. Beraud v. McDonald, 766 F.3d 1402, 1406 (Fed. Cir. 2014). VA then has an obligation to decide whether the evidence received is new and material to allow finality to attach. Id. In this context, all relevant and reasonably connected VA-generated documents, in particular records created in the course of medical care provided by VA, are "received" into the record and are constructively known by VA adjudicators. Lang v. Wilkie, 971 F.3d 1348, 1352-53 (Fed. Cir. 2020). Not all records generated by VA are constructively of record; instead, only relevant and reasonably connected VA-generated documents are part of the record. Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). In this case, the Veteran was granted entitlement to service connection for PTSD in an April 2011 rating decision. The Veteran filed a timely notice of disagreement and was issued a statement of the case in January 2012. He did not perfect the appeal of this issue, and the April 2011 rating decision became final. In February 2012, the Veteran filed a claim for entitlement to a temporary total rating based on his psychiatric hospitalization to treat his service-connected PTSD, which was granted in an April 2012 rating decision, providing a 100 percent rating from December 12, 2011 to March 1, 2012. The Veteran did not appeal this rating. Within the year following the April 2012 rating decision, VA medical records showing ongoing treatment for the Veteran's service-connected PTSD and a February 2013 VA PTSD examination report were added to the record. The Board finds that the VA treatment records and examination report generated in the year following the April 2012 rating decision are not relevant to his claim for a temporary total rating based on his psychiatric hospitalization. The relevancy limitation of constructive possession does not require that every medical record is now part of the administrative record. Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021) (citing AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013) for the proposition that, to be "relevant," evidence "must tend to prove or disprove a material fact"). While these records reflect ongoing treatment for and assessment of his service-connected PTSD, they have no tendency to prove or disprove any material fact at issue for his claim for a temporary total rating based on his hospitalization and thus are not relevant to the claim. Accordingly, the Board concludes that these records were not constructively before the RO and therefore RO was not obligated address this evidence until the Veteran filed his application to reopen the claims because the exception to finality under 38 C.F.R. § 3.156(b) was not triggered. See Lang, at 1355; cf. Beraud, 766 F.3d at 1406. Therefore, the Board concludes that the April 2012 decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In May 2012, the Veteran filed a claim for an increased rating for his service-connected PTSD. The issue was adjudicated in a March 2013 rating decision. The Veteran filed a timely notice of disagreement and was provided with a statement of the case in December 2014. He did not perfect an appeal of the issue, and the May 2012 rating decision became final. In June 2013, the Veteran filed a claim for entitlement to a temporary total rating based on a psychiatric hospitalization due to service-connected PTSD. This was granted in a September 2013 rating decision. The Veteran did not appeal this rating. Within the year following the September 2013 rating decision, VA medical records showing ongoing treatment for the Veteran's service-connected PTSD and tinea pedis and an examination report for tinea pedis were added to the record. The Board finds that the VA treatment records and examination report generated in the year following the September 2013 rating decision are not relevant to his claim for a temporary total rating for his psychiatric hospitalization. While these records reflect ongoing treatment for PTSD, they have no tendency to prove or disprove any material fact at issue for his claim for a temporary total rating based on his hospitalization and thus are not relevant to the claim. As such, these records were not constructively before the RO and the RO was not obligated address this evidence until the Veteran filed his application to reopen the claims because the exception to finality under 38 C.F.R. § 3.156(b) was not triggered. Id. Therefore, the Board concludes that the September 2013 decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran filed a claim for entitlement to a higher rating for PTSD in November 2014. In a December 2014 rating decision, the RO increased the Veteran's rating to 50 percent, effective November 4, 2014, the date the Veteran filed his claim for a higher rating. In the year following this decision, the Veteran underwent a VA examination in July 2015 to determine the severity of his service-connected PTSD. As this evidence is relevant to the issue of the disability rating assigned for PTSD, it was constructively part of the record of evidence, and the RO had an obligation to decide whether the evidence received is new and material. However, no determination was made as to whether this evidence was new and material to the December 2014 rating decision and therefore, finality does not attach to this decision. In January 2015, the Veteran filed a claim for an increased rating for PTSD. A July 2015 rating decision continued the 50 percent disability rating. VA medical records show that in the year following this decision, the Veteran received ongoing treatment for his service-connected PTSD. As this evidence is relevant to the issue of an increased rating for PTSD, it was constructively part of the record of evidence, and the RO had an obligation to decide whether the evidence received is new and material. However, no determination was made as to whether this evidence was new and material to the January 2015 rating decision and therefore, finality does not attach to this decision. In October 2015, the Veteran filed another claim for an increase in rating for PTSD. A November 2015 rating decision continued the 50 percent disability rating for PTSD. The Veteran filed a timely notice of disagreement with this decision and was issued a statement of the case in December 2017. The Veteran perfected this appeal to the Board. The appeals period for the current claim on appeal begins November 4, 2014, when the Veteran filed a claim for an increased rating for service-connected PTSD as the December 2014 and July 2015 rating decisions did not become final. In a March 2020 rating decision, the RO granted a temporary evaluation of 100 percent effective June 13, 2019 because of hospitalization over 21 days for service-connected PTSD with a 50 percent rating effective August 1, 2019. The RO additionally granted a 100 percent disability rating effective August 22, 2019. As such, the issue on appeal is entitlement to a disability rating in excess of 50 percent prior to June 13, 2019 and from August 1 to August 22, 2019. Increased Rating The Veteran contends that he is entitled to a higher rating for PTSD during the appeal period. Under the General Formula for Mental Disorders (General Formula), 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); 38 C.F.R. § 4.130. 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, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher at any time over the appeal period. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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; or memory loss for names of close relatives, own occupation or own name. Background The Veteran was provided with a VA examination in November 2014. The examiner diagnosed PTSD and panic disorder without agoraphobia and found that it was not possible to differentiate the portion of the occupational and social impairment indicated above that was caused by each mental disorder, as the symptoms of PTSD and panic disorder tended to interact and exacerbate one another. The examiner opined that the Veteran's service-connected psychiatric disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he had been with his wife for fifteen years and that he relied on his wife for a lot of support. She often had to assist him to keep his irritability and other problems in check. However, he indicated that he often had trouble feeling emotionally close to her and that they had separated several times in the past. He had no contact with his two adult children but spoke to his sister daily. He reported that he had no friends and no recreational interests. He last worked in approximately 2007. He got a job as a truck driver hoping that the isolation would benefit him and limit opportunities for anxiety and conflict at the workplace. However, he did not cope well with the lack of structure and he was often late with deliveries. The Veteran reported that he felt anxious "all the time" and that he was easily startled by people approaching him unexpectedly. He was often hypervigilant and felt as though he could not relax. He had trouble falling and staying asleep and had nightmares about every other night. He was easily irritated by minor issues and prone to yelling at others, including family members and people in public. He isolated himself most of the time and felt as though very few things in life brought him pleasure. He had panic attacks several times a week. The Veteran was afforded a VA examination in July 2015. The examiner found that the Veteran's service-connected psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. The examiner opined that it was not possible to differentiate what portion of the occupational and social impairment indicated above was caused by each mental disorder as there was significant overlap between symptoms. The Veteran had separated from his wife seven months prior and reported that he "hated her." He was not dating or in another intimate relationship. The Veteran reported that he did not have a relationship with his two adult daughters as he felt they treated him badly. The Veteran denied any social contacts and was not involved in any self-help or recovery groups, church, or any other organizations. He spent a typical day alone. The examiner noted that the Veteran reported that he sometimes slept on the streets but that his appearance was inconsistent with someone living on the streets. This observation was based on hygiene, grooming and attire. The Veteran reported that he slept at Salvation Army the night prior to the examination. The Veteran had not had any psychiatric care since the last examination in November 2014. He reported that his wife had called the police on him the prior week as he was suicidal. He had a bad experience at a VA RO and had been making threats toward them. The Veteran indicated that he had panic attacks, during which he would sweat, become angry and defensive, and would lash out. He got into "arguments and altercations all the time" or about once a day. His mood was down, he felt depressed daily, and had thoughts of suicide. On specific questioning the Veteran reported anger and confusion. He was irritable and defensive. He voiced concerns of his benefits and anger at the regional office and returning for an evaluation. The examiner found that the Veteran presented in an atypical manner for individuals who have PTSD. He did not spontaneously report common PTSD symptoms when asked directly what trauma symptoms he was experiencing; however, the examiner did check several PTSD-related symptoms on the examination report, including recurrent, involuntary, and intrusive distressing memories of the traumatic event(s), recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event(s), persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame), markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, reckless or self-destructive behavior, sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep). Additional symptoms were anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner noted that the Veteran had impairment in his social and occupational functioning. He reported that he was attending college and was able to get a B in one class and an A in another. The examiner found that this meant that he had good academic function despite having symptoms and would suggest ability to have attention, retain and perform with deadlines of the college courses. He reported that he had completed four years' worth of college. The Veteran was provided with a VA examination in September 2017. The examination included two symptom validity screening measures which suggested symptom amplification. As a consequence of these findings, the examiner was unable to accept self-report of symptomatology or functional impairment at face value and therefore did not provide or confirm a diagnosis of a psychiatric disorder. The examiner did note that individuals who present with such a response bias may very well have mental health symptoms that are clinically significant and distressing. While she recognized that the Veteran was currently in treatment, she felt that she could not determine within a reasonable degree of confidence that nature of his mental disorder and the severity of his functional impairment. Upon examination, the Veteran reported that he was separated from his wife and in the process of divorcing. He lived alone. His relationship with his daughters was "better than it used to be." He had volunteered for three months at the VA as a shuttle driver but had stopped volunteering about one month prior to the examination because he could not fit it in and felt that it was a burden. He reported that he had acquaintances but struggled with friendships. The Veteran did have an ongoing relationship with his sister. He reported that he enjoyed exercise and sleeping. He had no other hobbies. On the examination report form, the examiner checked the following PTSD-related symptoms: markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, a persistent inability to experience positive emotions, irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects, exaggerated startle response, problems with concentration, sleep disturbance, anxiety, and suspiciousness. Additional symptoms included panic attacks more than once a week, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran reported depressed mood, anxiety, social isolation, nightmares, hypervigilance, avoidance of trauma cues, concentration difficulties, and difficulty trusting people. He had difficulty managing stress. The Veteran underwent a VA examination in August 2019. The examiner noted that the Veteran's symptoms included distressing memories, distressing dreams, diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior, and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, and concentration difficulty. Additional symptoms included depressed mood, anxiety, social withdrawal, substance-related issues, suspiciousness, depressive symptoms, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, impaired impulse control, such as unprovoked irritability with periods of violence. The examiner opined that, in review of reported symptomology and documentation, the Veteran would be best described as meeting the minimum diagnostic criteria for PTSD. In terms of functioning level, he seemed to be exhibiting mild limitations in the areas of remember or applying information, moderate limitations in relating to and working with supervisors, co-workers, and others, and mild limitations in the ability to concentrate, persist, or maintain pace. Finally, he appeared to be exhibiting noticeable limitations in trying to adapt and manage oneself. The examiner opined that the Veteran's service-connected psychiatric disability resulted in total occupational and social impairment. VA medical records reflect ongoing treatment beginning in July 2016, when he reported intrusion symptoms, having strong negative beliefs about others and the world, having strong negative feelings, being irritable, feeling easily startled, and having difficulty falling asleep. These records reflected problems with his relationships, ongoing anger, and anxiety. In July 2018, the Veteran reported feeling close to family. His social/peer group consisted of other peers in recovery. The Veteran reported no current financial problems. He was employed in transportation at a local addiction clinic and was a full-time student at palm beach state college. He was pursuing a degree in addiction counselling and was to complete his degree that summer. Mental status examinations throughout the appeals period reflect that the Veteran was consistently oriented to time, place, and person. He was generally cooperative and maintained eye contact. He presented with good hygiene and grooming. His speech was with regular rate and volume. Thought content was not indicative of delusional thinking and he had no hallucinations upon any examination or treatment. His thoughts were organized and goal directed. He denied ideas of reference, thought blocking, thought insertion, thought withdrawal and showed no evidence of perceptual disturbances or grossly disturbed thought processes. His mood was euthymic and he was not tearful. Mood was congruent with affect with normal range and intensity. His attention, concentration and memory consistently appeared within normal limits. His insight and judgment were sufficient. Treatment records show consistent assessments that he was a low risk of suicide/homicide. He made no verbalizations or behaviors suggestive of homicidal/suicidal ideation, plan, or intent. The Veteran disclosed plans for the future, and expressed having motivation to actively participate in treatment. He denied current suicide, ideation, intent or plans. Analysis Resolving all reasonable doubt in favor of the Veteran, his service-connected psychiatric disability meets the criteria for a 70 percent disability rating throughout the appeal period. VA treatment records, and examination reports reflect the following symptoms associated with a 50 percent rating: panic attacks more than once per week, difficulty in establishing and maintaining effective work and social relationships, and disturbances of motivation of mood. VA examiners also noted symptoms associated with a 70 percent rating. At the July 2015 VA examination, the Veteran reported that he had suicidal ideation and that he had threatened people at the VA. The VA examiner who conducted the August 2019 examination also noted suicidal ideation. The evidence also shows that the Veteran was irritable and prone to outbursts. The November 2014 examination reflected that he would yell at people. The July 2015 examination report reflected that the Veteran reported that he got into arguments and altercations daily. The August 2019 examiner noted impaired impulse control such as unprovoked irritability with periods of violence. The evidence also reflects that the Veteran exhibited difficulty in adapting to stressful circumstances. The August 2019 examiner additionally noted that the Veteran experienced near continuous panic or depression affecting the ability to function. Other examiners noted his reports that he experienced ongoing high levels of anxiety such that he felt he could not relax. These symptoms are all listed in the criteria for a 70 percent rating. Other symptoms were noted in the examination reports that are not listed in the rating criteria under the General Formula but are related specifically to the Veteran's PTSD. These included recurrent, involuntary, and intrusive distressing, recurrent distressing dreams, a persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects, reckless or self-destructive behavior, and sleep disturbance. These symptoms are similar in severity and frequency to those listed in the 70 percent rating criteria. The VA examiners who conducted the July 2015 and September 2017 examinations noted concerns regarding the Veteran's credibility in his reports. The July 2015 examiner noted that the Veteran appeared to be well-groomed despite stating that he often slept on the street. However, this examiner additionally noted the Veteran's report that he had slept at the Salvation Army the night before the examination and not on the street. The examiner additionally noted that the Veteran did not report a symptomatology consistent with PTSD; however, this examiner identified several symptoms associated with the Veteran in the examination that are specifically related to PTSD. The September 2017 examiner noted that testing reflected potential feigning of symptoms. However, this examiner also found that an individual could show these test results and have mental health symptoms that were clinically significant and distressing. In addition, this examiner did note several symptoms on the examination report that coincided with other reports in the claims file. While these VA examiners' concerns have been considered, overall, the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating. The evidence does not, however, support a 100 percent rating prior to August 2019. Significantly, the examiners have not linked any of the symptoms listed in the 100 percent criteria with the Veteran's service-connected psychiatric disability. The Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. VA medical records show consistently that the Veteran was a low risk of suicide or homicide and had made no verbalizations or behaviors suggestive of homicidal/suicidal ideation, plan, or intent. As such, his reports of suicidal ideation do not rise to the level contemplated in the rating criteria for a 100 percent rating, as they do not result in peristent danger of self-harm. In addition, these reports do not reflect that he exhibited a persistent danger of self-harm that would cause total social and occupational impairment. As noted above, ongoing VA medical records reflect that he expressed intent to actively participate in treatment and had plans for his future. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran has exhibited deficiencies in his ability to maintain relationships and to socialize. However, his occupational and social impairment was not total during the appeals period. The Veteran has been able to attend school and has maintained some relationships in his life. Mental status examinations in VA treatment records examinations indicate that the Veteran was oriented in all spheres, was cooperative, and had good hygiene. There were no difficulties noted with his speech or thought processes. As such, while the Veteran's service-connected psychiatric disability warrants a 70 percent rating during the appeal period, a 100 percent disability rating is not warranted based on the evidence of record during the current appeal period. REASONS FOR REMAND Increased Rating Tinea Pedis VA medical records in the claims file reflect that the Veteran has undergone private treatment from Allopathic and Osteopathic Physicians and Podiatric Medicine and Surgery Service Providers. It does not appear that any attempts have been made to obtain these records. A remand is required to allow VA to obtain authorization and request these records. TDIU The most recent VA Form 21-8940 submitted by the Veteran including information regarding his work history and education level was dated in January 2015. Since that time, the Veteran has reported that he has been enrolled in college courses; however, this information is incomplete. As such, on remand, the Veteran should be provided with another VA Form 21-8940 to complete and return with his current information. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Allopathic and Osteopathic Physicians and Podiatric Medicine and Surgery Service Providers. Make two requests for the authorized records from these providers unless it is clear after the first request that a second request would be futile. 2. Ask the Veteran to complete a TDIU claim form (VA Form 21-8940) and, after an opportunity to respond, adjudicate entitlement to a TDIU. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Harrigan Smith 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.