Citation Nr: 21067652 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 09-41 901 DATE: November 4, 2021 ORDER Entitlement to an initial disability rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's PTSD was shown to be productive of occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial 70 percent evaluation for PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.130, 4.132, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to October 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at three different Board hearings in July 2010, March 2011 and September 2011. Subsequently, the appeal was before a three-judge panel at the Board. See 38 U.S.C. § 7102; 38 C.F.R. § 20.707. In October 2017, the Veteran was notified that an Acting Veterans Law Judge who had been on the panel had retired. The Veteran elected to participate in an additional hearing, which was conducted in February 2018. A transcript of all of the hearings is of record. In a June 2020 decision, the Board denied the claims on appeal. The Veteran appealed the June 2020 decision to the United States Court of Appeals for Veterans Claims (Court). By way of a Joint Motion for Remand (JMR) in February 2021, the Court vacated the Board's decision of the appealed issues and remanded the claims to the Board for compliance with the terms of the JMR. Entitlement to an initial disability rating of 70 percent for PTSD is granted. 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 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. See 38 C.F.R. § 4.7. The Veteran's PTSD is currently evaluated as 30 percent disabling under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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; and difficulty in establishing and maintaining effective work and social relationships. 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); and an inability to establish and maintain effective relationships. Lastly, a 100 percent evaluation is warranted 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. In its February 2021 JMR, the JMR parties (i.e., the VA General Counsel and the Veteran's representative) noted that the Board erred in the June 2020 decision, which denied a higher disability rating for the Veteran's service-connected PTSD, when it dismissed the symptom of suicidal ideation and when it did not address the letter from the Veteran's spouse that noted that the Veteran became very irritated and angry for no apparent reason whenever he was in crowds or in unfamiliar places for any length of time. The Veteran's spouse described an occasion, to demonstrate impaired judgment, where the Veteran "exhibit[ed] unacceptable behavior" by throwing vases and yelling at a wedding anniversary event. Following a review of the lay and medical evidence, the Board concludes that the preponderance of the evidence supports a finding that the Veteran's PTSD is productive of the higher 70 percent rating. In addressing 38 C.F.R. § 4.130, the United States Court of Appeals for Veterans Claims has held that "... the language of the regulation indicates that the presence of suicidal ideation alone, that is, a [V]eteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). In light of the holding in Bankhead, the Board finds that the Veteran's reports of suicidal thoughts on several occasions during the appeal period is controlling probative evidence in determining that his psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas. During the Veteran's September 2011 Board hearing, he noted that he had thought about suicide, but that he did not want to hurt or kill himself. The January 2009 VA examination report shows that there were no current suicidal or homicidal ideations, although fleeting thoughts of suicide in the past were noted. At the February 2018 Board hearing, the Veteran noted that he had suicidal ideations when he was feeling bad and when nothing was going right, but he noted that he had not tried to kill himself, but was depressed. In addition, regarding impaired impulse control, a review of the record shows that, during the September 2011 Board hearing, the Veteran's spouse indicated that the Veteran would get mad quickly. The October 2015 VA examination report shows that the Veteran's spouse noted that the Veteran was "real moody." She stated that routine was important to the Veteran, and, if changes were made, he became upset. Furthermore, the evidence shows that the Veteran's PTSD has been manifested by a depressed mood, anxiety, disturbances of motivation and mood, suspiciousness, intrusion symptoms, avoidance practices, persistent negative emotional state, markedly diminished interest or participation in significant activities, hypervigilance, and exaggerated startle response. See January 2009, October 2015, September 2018, and September 2019 VA PTSD examination reports. The Board notes that the symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. 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). The Board further finds that the preponderance of the evidence is against an evaluation in excess of 70 percent since the symptoms or the effects of the symptoms set out for a higher level of impairment are absent from the record during the appeal period. Notably, a review of the evidence does not show that the Veteran had total occupational and social impairment. The Veteran has never attested to experienced persistent delusions or hallucinations or a persistent danger of hurting self of others, and has not displayed disorientation to time or place or memory loss for names of close relatives, own occupation, or own name. In reaching the above conclusion, the Board has not overlooked the Veteran's and family member statements found in the record. In this regard, the Veteran is certainly competent to report how he believes his PTSD has affected his life, including describing his symptoms. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, these symptoms, in light of the medical opinions provided by the VA examiners and the observable symptoms as demonstrated in clinical treatment notes, do not serve to establish that the noted criteria for a 100 percent evaluation have been met. Therefore, resolving all doubt in the Veteran's favor, an initial rating of 70 percent, but no higher, is warranted for the entire period on appeal. In reaching this determination, the Board notes that this appeal raises no additional rating issues, other than the TDIU claim addressed below. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). REASONS FOR REMAND Entitlement to TDIU is remanded. In its February 2021 JMR, the JMR parties noted that the issue of entitlement to TDIU was inextricably intertwined with the Veteran's PTSD claim. Of note, in the June 2020 Board decision, it was discussed that, prior to August 5, 2019, the Veteran did not meet the criteria for consideration under 38 C.F.R. § 4.16(a). However, in this decision the Board is increasing the rating for his PTSD from 30 percent to 70 percent for the entirety of the appeal period. As such, the criteria for schedular consideration under 38 C.F.R. § 4.16(a) have been met for the entire period on appeal. In support of the appeal, the Veteran and his representative submitted a private report from a vocational consultant in September 2021, indicating that the Veteran is precluded from employment throughout the appeal period due to his service-connected disabilities. At the same time, a new TDIU application, submitted in September 2021, reflects that the Veteran had worked on a "[s]easonal" basis as a "Sergeant at Arms" for state government from January 2010 to April 2019, with highest gross earnings per month of $1921.33. The claims file has not since then been reviewed by a medical professional for further analysis of this TDIU claim. Given the potentially conflicting evidence noted above, the Board finds that additional development is necessary to fully and fairly adjudicate the issue of entitlement to TDIU before a final Board adjudication is made on the claim. A VA examination is needed to determine the impact of the Veteran's service-connected disabilities have on his occupational functioning. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for a VA examination by an appropriate medical professional to specify the nature and severity of all functional impairment that the Veteran's service-connected disabilities have on his ability to secure or follow a substantially gainful occupation, consistent with his education and occupational experience. When addressing specific functional effects, the examiner must not consider the Veteran's age or any nonservice-connected disabilities. To the extent that the Veteran is unable to perform specific activities, the examiner should so specify. The examiner must review the Veteran's claims file, with particular attention to the September 2021 vocational consultant report. A complete rationale for the opinions rendered must be provided. The examiner is advised that the Veteran is competent to report symptoms and that his reports must be taken into account in formulating the requested opinions. The Board recognizes the practical difficulties of scheduling examinations in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.