Citation Nr: 21067369 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-04 479 DATE: November 4, 2021 ORDER Entitlement to an initial rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) based solely on the Veteran's PTSD is granted, effective June 2, 2014. REMANDED Entitlement to service connection for a dermatitis/eczema (skin condition) is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's PTSD symptoms do not result in total occupational and social impairment. 2. The Veteran's PTSD alone results in an inability to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD have not 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. 2. The criteria for a TDIU based on a single disability have been met since June 2, 2014. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1966 to September 1969, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Air Medal and the Vietnam Service and Campaign Medals. This matter is before the Board of Veterans' Appeal (Board) on appeal from a February 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in February 2020. A transcript of the hearing is in the Veteran's file. In April 2020 the Board remanded the claims of entitlement to service connection for eczema and an increased rating for PTSD for further development, to include obtaining VA examinations. The Board also granted service connection for hearing loss and tinnitus. As the development ordered by the Board for the Veteran's PTSD claim has been accomplished, the Board finds substantial compliance with its remand instructions. 1. Entitlement to an initial rating greater than 70 percent for PTSD 2. Entitlement to a TDIU based solely on the Veteran's PTSD is granted The Veteran contends he is entitled to a higher rating for his PTSD. Service connection for PTSD was granted in a February 2015 rating decision with an initial rating of 50 percent effective March 31, 2014. The Veteran's rating was increased to 70 percent, effective March 31, 2014, in a September 2020 rating decision. 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). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. 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. VA and private treatment records, the February 2015 and April 2020 VA examinations, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating (suicidal ideation, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control, difficulty in adapting to stressful circumstances (including work or a worklike setting); and 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). He also had symptoms that are not listed with a specific rating, such as intrusive thoughts, hypervigilance, and irritability. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. VA treatment records indicate that these symptoms were present frequently and that they would increase in severity during periods of stress or with changes in medication. See, e.g., July 2016 and January 2017 VA treatment records. However, intrusive thoughts, hypervigilance, and irritability are similar to near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, which is contemplated by the assigned 70 percent rating. The Board notes that 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. January 2020 private treatment records reveal the Veteran reported that he has had suicidal thoughts but did not indicate the frequency or recency of those thoughts. At the April 2020 VA examination the Veteran reported that he has moments where he feels others might be better off without him but has never seriously contemplated ending his life and he denied current suicidal thoughts. June 2020 VA treatment records show that the Veteran reported that he has had three ten-minutes episodes of suicidal thoughts, but that he has no intent to act on such thoughts. His provider requested he return to the clinic in three months instead of six months due to his "long-term intermittent suicidal thoughts." However, with the exception of the above noted instances, the Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, including during the February 2015 and April 2020 VA examinations. The Board notes that the Veteran was engaged in regular psychiatric treatment, including weekly support groups, during this time. 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 experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA and private treatment records and the February 2015 and April 2020 VA examinations show that the Veteran had fluctuating mood and affect but were otherwise normal. During the February 2015 VA examination, the Veteran reported that he has a troubled marriage and few friends, though he reported doing well when his wife invites guests to the house. He also reported depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, taking unnecessary risks, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran had no trouble with activities of daily living due to his mental health symptoms and opined that his symptoms caused occupational and social impairment with reduced reliability and productivity. During the April 2020 VA examination, the Veteran reported that he feels guarded and on edge all of the time and would rather be by himself. He also noted several instances where his anxiety escalated to the point of paranoia and panic. Additionally, he reported an increasingly "short fuse" in recent years with his wife, diminished sleep, and poor concentration. The examiner opined that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, and further described his functional impairment as moderate to severe. The Veteran submitted Disability Benefit Questionnaires (DBQs) from private psychologist Dr. E.T. in September 2016 and January 2020. Both DBQs indicated the Veteran's symptoms caused total occupational and social impairment. In both DBQs she listed the Veteran's symptoms as near continuous panic and depression, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened affect, impaired judgment, inability to establish and maintain effective relationships, difficulty adapting to stressful circumstances, and impaired impulse control. In the January 2020 DBQ she also noted panic attacks that occur weekly or less often and suicidal ideation. Though the examiner indicated the Veteran was totally socially and occupationally impaired, the findings on the DBQs were not consistent with the 100 percent rating criteria. For example, Dr. E.T. did not find any symptoms associated with the 100 percent rating criteria, such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, or memory loss for names of close relatives, own occupation, or own name. Indeed, all symptoms noted were more consistent with the 70 percent rating criteria. Therefore, the Board gives little weight to the doctor's assessment that the Veteran is totally occupationally and socially impaired. While the Veteran did experience suicidal thoughts during the appeal period, a symptom contemplated by a 100 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, while the Veteran has been granted a total disability rating based on individual unemployability due to service-connected disability, he was not totally socially impaired. While VA treatment records over the appeal period show the Veteran reported trouble interacting with others, especially non-veterans, the Veteran reported good relationships with his children, grandchildren, and two veteran friends. In fact, during the April 2020 VA examination, the Veteran described positive social connections with other veterans and less limited interactions with others, though he indicated that he enjoys going golfing, riding his bike, and working out at his local health club. The Veteran reported that he attends church regularly but sits in the back due to his anxiety. He has also been married for over 40 years, though he and his wife describe their relationship as troubled. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent rating are not met and the appeal must be denied. Having said that, the Veteran contends that his PTSD alone precludes his ability to secure or follow a substantially gainful occupation. While a TDIU has already been granted in this case, a review of the records reflects that this grant was based on the combined effects of the Veteran's service-connected disabilities and not on any single disability alone. However, the grant of a TDIU for a single disability may render the Veteran eligible for additional ancillary benefits, to include the grant of special monthly compensation. Over the course of the appeal period, the Veteran's PTSD has been rated at 70 percent, so he meets the schedular criteria for the grant of a TDIU based on a single disability. 38 C.F.R. § 4.16. Further, as summarized in the preceding section, though the Veteran's PTSD has not resulted in total occupational and social impairment as to warrant a 100 percent schedular rating, the Board finds that the Veteran's PTSD symptoms are of such a severity as to preclude his ability to secure or follow a substantially gainful occupation. Accordingly, the Board grants a TDIU based on the Veteran's PTSD alone effective June 2, 2014, the day after the Veteran's last day of substantially gainful employment. REASONS FOR REMAND 1. Entitlement to service connection for a dermatitis/eczema (skin condition) is remanded. Though the Board regrets further delay, another remand is required to afford the Veteran every opportunity for service connection. The August 2020 VA examination opined against service connection. However, the Board finds this opinion inadequate as it failed to consider the Veteran's contentions regarding symptoms of a skin disorder since shortly after discharge from service and relied in large part on the fact that dermatitis and eczema are not among the diseases for which presumptive service connection is warranted. Accordingly, there has not been substantial compliance with the Board's previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, after this VA examination the Veteran's representative raised the argument that his skin condition could be related to gonorrhea, which is documented in his service treatment records. Accordingly, remand is required to obtain an adequate medical opinion regarding the etiology of the Veteran's eczema. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the etiology of the Veteran's skin disability. The evidence of record, to include a copy of this Remand, must be made available to the examiner and the examiner must indicate that the pertinent medical records and lay statements have been reviewed. The examiner is to answer the following question: Is it at least as likely as not (a 50 percent probability or greater) that any skin disability is related to his active duty service, to specifically include exposure to herbicides agents and gonorrhea? In answering this question, the examiner may not rely solely on the fact that the Veteran's skin disabilities are not among the diseases for which presumptive service connection is warranted. The examiner's attention is drawn to the Veteran's competent statements that he experienced skin rashes upon return from Vietnam that continued periodically to present day. The need for additional physical examination of the Veteran is left to the discretion of the examiner. The examiner must provide a complete explanation for all opinions. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.