Citation Nr: 21067394 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-47 131 DATE: November 4, 2021 ORDER Entitlement to a rating of 70 percent and no higher for PTSD from March 22, 2016 to August 31, 2017 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating higher than 70 percent for PTSD from August 31, 2017 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's PTSD is manifest by occupational and social impairment with deficiencies in most areas, such as work, family relations, and mood, from March 22, 2016 to August 31, 2017. 2. The Veteran's PTSD does not manifest by total occupational and social impairment from August 31, 2017. 3. The Veteran's service-connected PTSD prevents him from obtaining and maintaining substantially gainful employment consistent with his education and employment history. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent and no higher for PTSD from March 22, 2016 to August 31, 2017 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 (DC) 9411. 2. The criteria for a disability rating higher than 70 percent for PTSD from August 31, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to June 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision. This appeal was remanded by the Board in March 2019. A July 2020 rating decision assigned a rating of 70 percent for PTSD from August 31, 2017. Entitlement to a TDIU is reasonably raised by the record as part of the appeal of entitlement to a higher rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board must also clarify the Veteran's representative. The Veteran has been represented by the North Carolina Division of Veterans Affairs (NCDVA) since VA received the completed VA Form 21-22a in August 2016. In December 2020, VA received a VA Form 21-22, signed by the Veteran, in favor of American Legion. If a change in representation is requested more than 90 days after certification, good cause must be shown for the change. 38 C.F.R. § 20.1304(b). This request was made more than 90 days after the notification letter from the Board in August 2020. The Veteran provided no cause for his change in representation. Accordingly, the Board concludes that NCVDA is the Veteran's representative for the purpose of this decision. Id.; see also Perez v. Shinseki, 25 Vet. App. 190 (2012). For future matters and considerations, American Legion will be the Veteran's representative of record (barring another change). 1. Entitlement to a higher than 50 percent for PTSD from March 22, 2016 to August 31, 2017 The Veteran contends that his symptoms warrant the assignment of a rating higher than 50 percent for PTSD prior to August 31, 2017. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. 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 Veteran's PTSD is rated under the General Rating Formula for Mental Disorders. Under this formula, a 50 percent rating is assigned when symptoms cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms 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 when psychological opinions cause total occupational and social impairment.38 C.F.R. § 4.130, DC 9440. The Board finds that, resolving doubt in the Veteran's favor, his PTSD is most appropriately described as manifested by occupational and social impairment with deficiencies in most areas such as work, family relations, and mood throughout the period on appeal. The Veteran's judgment has been intact throughout the period on appeal, and the Veteran's difficulty concentrating more closely approximates the impaired short and long-term memory and impaired abstract thinking contemplated by the 50 percent rating than the suicidal ideation and obsessional rituals which interfere with routine activities contemplated as a deficiency in the area of thinking by the 70 percent rating criteria. However, resolving doubt in the Veteran's favor, the Veteran does have deficiencies in most areas. The Veteran's deficiency with work began prior to August 31, 2017. A June 2016 VA treatment note indicates that the Veteran reported increased difficulty at work, including being way behind. In an August 2016 treatment note, the Veteran reports that he has only been able to work because he has been able to isolate and work by himself. The Veteran reported in a July 2017 treatment note not feeling in control of all areas of his life, particularly in the area of employment, and stated that he suspected he might be pushed out by the end of the year. The record reflects that his problems at work continued until he was forced to resign in November 2019. The PTSD symptoms, including difficulty with stress and interpersonal relationships, that ultimately resulted in his forced resignation were causing trouble for the Veteran throughout the period on appeal. For these reasons, the Board finds that the Veteran was deficient in the area of work prior to August 31, 2017. Although the Veteran's deficiency in the area of family is not discussed extensively prior to August 31, 2017, the May 2016 VA examination indicates that the Veteran lives alone, never married, has no children, and feels isolated and lonely at times. The Veteran's concerns and regrets over his PTSD preventing him from establishing relationships throughout his life was discussed in greater detail after August 31, 2017, but there is no indication in the record that it had worsened at that point. Rather, the isolation and lack of supportive relationships with others has persisted throughout the period on appeal. Therefore, the Board finds that the Veteran is deficient in the area of family relations. The Veteran has a deficiency in the area of mood because his depression and irritability is best described as near-constant and affecting his ability to function independently, appropriately, and effectively. An August 2016 treatment note indicates a report of irritability and only being able to work because he is able to isolate while he does so. A November 2016 VA treatment note indicates that the Veteran has noticed a decrease in his personal hygiene and low motivation. The Veteran's mood is thus preventing him from effectively working with others and even maintaining his personal hygiene to his usual standard. Because the Veteran's PTSD is best described as occupational and social impairment with deficiencies in most areas, namely work, family relations, and mood, the Board finds that the criteria for a rating of 70 percent have been met throughout the period on appeal. The criteria for a rating higher than 70 percent has not been met. Although the Veteran struggled at work, he was still employed at this point, and thus is not appropriately described as suffering from total occupational impairment. Moreover, there is no indication of symptoms comparable to gross impairment in the Veteran's thought processes, delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, his own occupation, or his own name. Therefore, the criteria for a rating higher than 70 percent have not been met. 2. Entitlement to a rating higher than 70 percent for PTSD from August 31, 2017 Although the Veteran argued in a July 2020 statement that he should be assigned a 100 percent rating because his unable to work, the Board finds that the criteria for a 100 percent rating for PTSD have not been met. The criteria for a 100 percent rating require total occupational and social impairment. Although the Veteran reported being forced to resign due to his PTSD symptoms in November 2019, he was employed during the period on appeal prior to that point, and unemployability alone is not the sole criteria for entitlement to a 100 percent rating. An October 2019 VA examination indicates that the Veteran has occasional contact with his sister. A November 2017 treatment note indicates that the Veteran cared for his sister's dog while she was in the hospital, and a July 2019 treatment note indicates that he was helping his sister since her husband passed but that he did not wish to live with her for financial convenience. Therefore, although the Veteran does not have a close relationship with his sister, he has some level of relationship with her, and is not totally socially impaired. Although an August 2017 Disability Benefits Questionnaire (DBQ) completed by a private clinician indicates that the Veteran has grossly inappropriate behavior and an inability to operate in regular activities of daily living such as personal appearance and hygiene, there is no indication of what that grossly inappropriate behavior might be, and this conclusion is not supported by the record. On the contrary, a December 2017 treatment note indicates that the Veteran takes the wise precaution of exercising regularly and attending anger management therapy to keep his temper in check and avoid grossly inappropriate behavior. Although the Board recognizes that the Veteran's psychiatric symptoms have caused a decline in the Veteran's hygiene and have caused him to avoid going out, as indicated by a September 2018 note, the Board interprets this as indicative of a deficiency in the area of mood comparable to near-continuous panic or depression affecting his ability to function independently and neglect of personal appearance and hygiene, which is contemplated by the 70 percent rating that has been assigned. This finding is supported by the fact that although the Board recognizes that the Veteran's personal standard of attendance to his hygiene has dropped, his hygiene has generally been described as acceptable or good in the treatment records from this period. Moreover, the Board must evaluate psychiatric disabilities based upon overall social or occupational impairment, not by focusing on the presence or absence of a specific set of symptoms in the DC rating criteria. Mauerhan, 16 Vet. App. at 442. In this case, although the Veteran's PTSD symptoms are severe, the Veteran does not show an overall total occupational and social impairment for the reasons discussed above, and no clinician, even the private clinician who completed the August 2017 DBQ, has described him as such. The Veteran's argument in favor of the assignment of a 100 percent rating is based upon his unemployability, which, as is noted above, is not the sole criteria for the assignment of a 100 percent rating. Therefore, entitlement to a 100 percent rating for PTSD is not warranted. 3. Entitlement to a TDIU The Veteran contends that he is not able to obtain or maintain substantially gainful employment because of his PTSD. He reported in an August 2020 statement that after several confrontations with his supervisor and customers, he was forced to resign in November 2019 once his medical leave ran out. An October 2019 VA examination notes that the Veteran's PTSD has a negative impact on his ability to concentrate and would negatively impact his work performance. The examiner found that the Veteran's PTSD also has a negative impact on his interpersonal functioning in all areas, including work settings, and that he would not function well in a work setting which involves interpersonal communication. The examiner also found that the Veteran has poor stress tolerance. In this case, the Board lacks information about the Veteran's occupation and educational history, including details about his most recent employment. However, the record reflects that he was already working in a fairly isolative environment. In August 2016 he credited his ability to work to his ability to work by himself and isolate. In a December 2017 treatment note he reported primarily working from home because he thought they did not want him around anybody. In spite of this avoidance of interpersonal contact, the Veteran still had several confrontations, including with his supervisor. The Board finds that the Veteran is unlikely to be able to obtain and maintain substantially gainful employment if he cannot even manage to work from home in an isolative environment without having confrontations with his supervisor leading to his forced resignation. Therefore, resolving doubt in the Veteran's favor, the Board finds that the Veteran is entitled to a TDIU from the date of his forced resignation, once that date has been confirmed. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.