Citation Nr: 21066224 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 13-34 090A DATE: October 29, 2021 ORDER Entitlement to an initial rating 70 percent rating, but no higher, from December 23, 2010, for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an initial rating in excess of 70 percent from December 23, 2010, for PTSD is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT From December 23, 2010, the preponderance of the evidence shows that the Veteran's PTSD is productive of occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for at least a 70 percent rating for PTSD have been met at all times from December 23, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.14, 4.130, Diagnostic Codes 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force (USAF) from January 1984 to November 2008 with service in Iraq. In December 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In January 2018, the Board of Veterans' Appeal (Board) remanded the appeal. Rating decisions in January 2019 and October 2019 increased the Veteran's disability rating for PTSD from 10 percent to 30 percent effective December 23, 2010, and assigned a 50 percent disability rating after December 5, 2016. Because the increased ratings do not represent a grant of the maximum benefits allowable and the appeal has been pending since December 23, 2010, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38(1993); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In February 2020 the Board, among other things, denied an initial rating higher than 30 percent for PTSD from December 23, 2010, to December 5, 2016, and a rating higher than 50 percent from December 5, 2016. The Veteran appealed the February 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's denial of higher initial ratings for PTSD. Lastly, the Board finds that the record raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Rating Claim The Veteran claims, in substance, that he is entitled to higher ratings for his PTSD at all times during the appeal period. Rating a disability over time that may become worse, or better, over time, is inherently intricate. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's PTSD is rated as 30 percent disabling from December 23, 2010, and 50 percent from December 5, 2016, under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula)). The General Formula provides a 30 percent rating is warranted when the evidence shows 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), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when the evidence shows 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. A 70 percent rating is warranted when there is 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 depressive disorder 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. A 100 percent rating is warranted when the evidence shows 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. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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). When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Initially, the Board notes that this claim for a higher rating for PTSD was pending before the agency of original jurisdiction on or after August 4, 2014. Therefore, the Board finds that the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (2013) (DSM-5) applies to the current appeal. See 53 Fed. Reg. 14308 (March 19, 2015); 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 (2017). Accordingly, the Board's adjudication of this claim cannot include any discussion of the Global Assessment of Functioning (GAF) scores found in the record. See Golden v. Shulkin, No. 16-1208, Slip opinion at 5 (Vet. App. Feb. 23, 2018). With the above criteria in mind, the record shows that at the August 2011 VA examination the Veteran endorsed symptoms of obsessive/ritualistic behavior, panic attacks (x 2 per week), irritability/anger/verbal outbursts with a remote history of violence, anxiety, intrusive thoughts/flashbacks, avoidance behavior, disinterest in activities, detachment from others, sleep disturbance/nightmares, hypervigilance, and an exaggerated startled response. Likewise, at the private DBQ Examination dated in May 2018 Veteran endorsed symptoms of suicidal ideation, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, circumstantial, circumlocutory or stereotyped speech, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, obsessional rituals which interfere with routine activities, difficulty in establishing and maintaining effective work and social functions, difficulty adapting to stressful circumstances including work or work like setting, an inability to maintain and establish effective relationships as well as emotional numbing and disengagement, overreaction to minor issues, survival guilt, fatigue, low motivation, impaired impulse control with irritability and anger, a sense of a foreshortened future and purposelessness, being unable to focus, and cognitive impairment affecting his executive function. Additionally, at the November 2018 VA examination the Veteran endorsed symptoms of a depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective relationships. Moreover, during the examination the Veteran reported a generally depressed, irritable, and anxious mood. Similarly, VA treatment records shows that the Veteran suffered periods of anxiety during which he would shake and breathe heavy/panic attacks, excesses vigilance, trouble controlling his anger/irritability, obsessive/ritualistic behavior, intrusive thoughts, flashbacks, dreams of events in service, poor sleep, and anxiety. See, e.g., VA treatment records dated in May 2011, June 2011, July 2011, March 2018, February 2019, March 2019, and May 2019. Tellingly, the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). The Court has also held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, when considering the frequency, severity, and duration of the Veteran's impairment to assess his disability picture and when resolving all reasonable doubt in his favor (as not all evidence in this case, supports this finding), the Board finds that the most probative evidence of record are the above medical records that shows that the PTSD adverse symptomatology approximates the criteria for at least a 70 percent rating at all times from December 23, 2010, because they include, among other things, suicidal ideation, panic attacks, obsessive/ritualistic behavior, irritability/anger/verbal outburst, anxiety, depressed mood, suspiciousness, flattened affect, intrusive thoughts/flashbacks, avoidance, disinterest in activities, detachment from others, sleep disturbance/nightmares, mild memory loss, impairment of short and long term memory, circumstantial, circumlocutory or stereotyped speech, hypervigilance, an exaggerated startled response, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, fatigue, low motivation, a sense of a foreshortened future and purposelessness, being unable to focus, and cognitive impairment affecting his executive function, difficulty adapting to stressful circumstances including work or work like setting, and an inability to maintain and establish effective relationships. See 38 C.F.R. § 4.130; Owens, supra; Fenderson, supra. Tatum, supra; Young, supra. As to a rating in excess of 70 percent for PTSD from December 23, 2010, the Board finds that it need not address this question at this time because it is part of the below Remand. REASONS FOR REMAND Entitlement to a rating in excess of 70 percent for PTSD from December 23, 2010, to the present is remanded. As to the claim for a rating in excess of 70 percent for PTSD from December 23, 2010, the Veteran's representative has alleged, in substance, that it has worsened since his last VA examination in November 2018. Therefore, the Board finds that a Remand is needed to provide the Veteran with a new VA examination. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Given the evidence that has been added to the record since the RO issued the October 2019 supplemental statement of the case (SSOC), the Board also finds that a Remand is required to issue the Veteran a new SSOC. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). While this issue is in Remand status, any outstanding VA and private treatment records should also be obtained and associate with the record. See 38 U.S.C. § 5103A(b). Entitlement to a TDIU is remanded. As to the claim for a TDIU, as noted above, it is raised by the record. See Rice, supra. However, the existing record is not adequate to adjudicate he claim because the Board is unable to ascertain when, if ever, the Veteran's service connected disabilities prevented him from obtain and maintaining substantial gainful employment. See 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a Remand is required to obtain from the Veteran a Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claims Form), to obtain his employment history. These issues are REMANDED for the following actions: 1. After obtaining all needed authorizations from the Veteran, associate with the claims file all outstanding private treatment records. If possible, the Veteran or his representative should submit and new pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 2. Obtain and associate with the claims file any outstanding VA treatment records (if any). 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, if he is working in a protected environment and/or whether he earns more than the poverty level, whether he continues to be employed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevent him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. Any help from the Veteran and/or his representative in obtaining this information would be appreciated. The form cited above is available on-line. The request should also notify the Veteran that the claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing at the VA Form 21-8940. 4. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his PTSD from December 23, 2010, to the present. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to identify all pathology found to be present. In providing the opinions, the examiner should consider the Veteran's competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. (Continued on the next page) 5. After undertaking the above development to the extent possible issue, a SSOC that, among other things, considers all the evidence added to the claims file since the October 2019 SSOC. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.