Citation Nr: 21070653 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-24 925 DATE: November 24, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) from July 16, 2010 to March 22, 2016, to exclude a period of temporary total hospitalization rating (from March 2, 2015 to June 30, 2015) under 38 C.F.R. §4.29 is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II, to include due to exposure to chemical weapons or toxins during the Gulf War, is remanded. Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU), prior to March 23, 2016, is remanded. FINDING OF FACT Prior to March 23, 2016, excluding a period of temporary total hospitalization rating (from March 2, 2015 to June 30, 2015) under 38 C.F.R. §4.29, the functional impairment resulting from the Veteran's service-connected PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, primarily due to such symptoms as suicidal ideation, near constant depression, and difficulty adapting to stressful circumstances, including work or a work like setting, since the effective date of service connection for the disability. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for PTSD prior to March 23, 2016, excluding a period of temporary total hospitalization rating (from March 2, 2015 to June 30, 2015) under 38 C.F.R. §4.29 are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Codes 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1990 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in April 2018. A transcript is of record. This matter was most recently before the Board in January 2020 when the Board denied service connection for diabetes mellitus, type II, to include due to exposure to chemical weapons or toxins during the Gulf War; denied an initial rating in excess of 30 percent for PTSD prior to March 23, 2016, excluding a period of temporary total hospitalization rating (from March 2, 2015 to June 30, 2015) under 38 C.F.R. §4.29; and denied a rating in excess of 70 percent for PTSD from March 23, 2016, to exclude a period of temporary total hospitalization rating (from June 20, 2016 to August 31, 2016) under 38 C.F.R. §4.29. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court), where the parties filed a Joint Motion for Partial Remand (JMPR). In September 2020, the Court granted the JMPR, vacating the portion of the Board decision denying service connection for diabetes mellitus, type II; vacating the portion denying an initial rating in excess of 30 percent for PTSD prior to March 23, 2016, excluding a period of temporary total hospitalization rating (from March 2, 2015 to June 30, 2015) under 38 C.F.R. §4.29; and remanding the matters for additional development consistent with the terms of the JMPR. The Appellant did not appeal the Board's denial for a rating in excess of 70 percent for PTSD from March 23, 2016, excluding a period of temporary total hospitalization rating (from June 20, 2016 to August 31, 2016) under 38 C.F.R. §4.29. Further, the parties agreed the Board erred by not addressing whether entitlement to a TDIU, prior to March 23, 2016, was on appeal. In an August 2016 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to a TDIU, effective March 23, 2016 to June 20, 2016 and from September 1, 2016 forward. As the record indicates that the Veteran was unemployed prior to March 23, 2016 and the increased initial rating claim for PTSD was on appeal prior to that date, the Board finds that the issue of entitlement to a TDIU prior to March 23, 2016 remains on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When 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(b); 38 C.F.R. § 4.3. The Veteran's PTSD is rated under Diagnostic Code 9411 in accordance with the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Currently, the Veteran has a staged rating for his PTSD with a disability rating of 30 percent prior to March 23, 2016, excluding a period of temporary total hospitalization rating (from March 2, 2015 to June 30, 2015) under 38 C.F.R. §4.29 and a 70 percent disability rating from March 23, 2016 forward, excluding a period of temporary total hospitalization rating (from June 20, 2016 to August 31, 2016) under 38 C.F.R. §4.29. Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of ability 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is assigned when there is reduced reliability and productivity in occupational and social situations due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is justified 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 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 inability to establish and maintain effective relationships. Id. A 100 percent disability rating is reserved 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; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442. The Veteran contends his PTSD symptoms, prior to March 23, 2016, warrant a 70 percent disability rating, effective July 16, 2010. See October 2021 Appellate Brief. After conducting a holistic analysis of the record, the Board finds a 70 percent disability rating, but no higher, effective July 16, 2010, is warranted. VA treatment records, VA examinations, and lay statements show that the Veteran's PTSD manifested with symptoms associated with the 70 percent rating, including occupational and social impairment with deficiencies in work, family relationships, judgment, thinking, and mood due to such symptoms as suicidal ideation, near constant depression, impaired impulse control (angry outbursts), inability to establish and maintain effective relationships, and difficulty in adapting to stressful circumstances. He also had symptoms that are not listed with a specific rating, such as poor appetite, fatigability, crying spells, and easy startling. In August 2010 McAllen VA outpatient clinic notes, attending physicians reported the Veteran had suicidal thoughts and entered a rehabilitation program because of failed relationships, loss of employment, and bad decision making. In an August 2010 San Antonio VA treatment note, the Veteran reported he would go to any length to help himself and to restore his relationship with his family. During the visit, the Veteran became tearful when discussing his PTSD and addiction. The Veteran denied suicidal and homicidal ideations. During a February 2011 independent medical opinion and special psychiatry examination, the Veteran reported he often thinks about his service in the Gulf War, despite trying not to; has recurring nightmares at least once or twice per week, wakes up sweating and with a racing heart; yells and moves in his sleep; has flashbacks during the day; and experiences triggers, including the smell of diesel fuel, the smell and sound of fireworks, and the sight and sound of helicopters. He further reported he does not trust people and does not go out often. He reported that he will go to events for his children so long as his wife is present, and they do not stay longer than necessary. He reported that he worries about his anger causing a "shortened life"; his emotions are "distant and depressed"; his supervisors at work have disciplined him for angry outbursts; his wife has threatened to leave him multiple times; and while driving he once engaged in a confrontation with another driver that resulted in the other driver brandishing a firearm. He reported he startles easily; his wife has to wake him up very carefully because he punches when being woken up; he sits near the exit at restaurants; and sleeps with a bat nearby. He reported interrupted sleep, low energy, and regularly feeling guilty. He reported suicidal ideations but decided not to follow through when he became a Christian. He reported a six to eight on a ten-point scale for anxiety. He denied panic attacks. He reported that when he has time off or a free day, he mostly stays at home. The examiner reported the Veteran was alert and oriented to person, place, and purpose; his appearance was casual; his hygiene was appropriate; his speech was normal in rate and volume; and his concentration seemed fair. The Veteran did not exhibit delusions, hallucinations, illusions, phobias, or obsessive-compulsive behaviour or thoughts. The Veteran did not have any difficulty with judgment and abstraction and his recent and remote memory seemed intact. The examiner concluded the veteran has symptoms of increased avoidance as evidenced by efforts to avoid thoughts, feelings, conversations, people, places, and things associated with the traumas; feeling detached and estranged from others, including his own family at times; not socializing appropriately; having a restricted range of affect; being upset and feeling guilty by watching the reports of the war news; and having a sense of a foreshortened future because of his "severe anger." The veteran has symptoms of increased arousal as evidenced by not sleeping restfully; being angry and irritable causing problems both at home and at work; being hypervigilant and suspicious; and being easily startled. In a June 2011 mental health evaluation note, the Veteran reported a low sense of self-worth, hopelessness when feeling "real down," sadness most days and most of the day, feeling guilty, difficulty concentrating, and past suicidal ideation. He reported "constantly feeling overwhelmed by anything"; a racing heart, shallow breathing, tensing up, uncontrollable worry, flashbacks at least two to three times per week, intrusive thoughts about "that person" and nightmares when he sleeps. In a September 2011 Psychology Note, the Veteran reported he has been feeling better but continued to struggle with irritable outbursts, especially towards his children and expressed remorse that he is hyper-reactive for "little things." In a September 2011 Statement in Support of Claim, the Veteran reported his persistent nightmares and flashbacks are getting worse; he cannot sleep nor function like he previously could; and finds himself "going to battle everyday" of his life. He reported constant memory lapses, experiencing daily panic, and not being able to focus nor function on a daily basis. He continued to endorse hypervigilance; avoidance of memories and places that trigger psychological and physiological distress; sleep disturbances and nightmares; and emotional numbing and detachment from others. In a September 2011 lay statement, the Veteran's spouse reported the Veteran experiences road rage, gives other drivers "the middle finger," argues with her, makes threats to begin drinking or using drugs, and he is overall difficult to talk to or reason with. She further reported the Veteran has unprovoked angry outbursts, once shouting profanity at a customer service representative in front of their son. She reported the Veteran states he drinks to forget the war; she does not know nor want to know what he saw; panics when a jet passes overhead; has flashbacks and nightmares; and yells during his sleep. She reported the Veteran has indicated he wanted "to give up on life." In a November 2011 Psychology Note, the Veteran continued to endorse hypervigilance; avoidance of memories and places that trigger psychological and physiological distress; sleep disturbances and nightmares; and emotional numbing and detachment from others. He reported he wished to be "functional," re-engage in family activities, return to work, and work on his relationship with his spouse. In a February 2012 Psychiatry Note, the Veteran reported occasional passive suicidal thoughts. He also reported he is depressed and tearful; has nightmares two to three times per week, remains hypervigilant; and experiences hyperarousal. He reported that he avoids people, places, and crowds. He reported he isolates, only visits family, does not like to go out but if he does, he only goes out during the day when there are less people out and sits with his back to the wall. In a March 2012 Psychology Note, the Veteran reported he relinquished control of his finances to his wife, feels a lack of control over his life, and experiences anxiety. He further reported that he is having trouble with his re-occurrence of "...wanting to kill or somebody is after me." Alternating between Spanish and English, the Veteran reported during the day he has been fishing more and "...off the wall with puro anger." He reported he has been acting "real ugly" for the past few days and can feel tension building up intensely in his neck area. He reported "re-occurrence" dreams at least three to four times per week; he tries to exhaust himself to no avail; and that he has been lashing out at "...everybody and by the time I notice it, it's already to late." In April 2012 Psychiatry Progress Notes, the Veteran reported he is still having flashbacks and nightmares. He reported that while driving he saw a tank in his rearview mirror and had to pull off the road. The examiner reported the Veteran remains hypervigilant and avoidant; continues to have unwanted intrusive thoughts about his active-duty service; and his mood is depressed and tearful. The examiner reported the Veteran experiences short term memory deficit and passive suicidal ideations. The examiner reported the Veteran continues to endorse hypervigilance, avoidance of memories and places that trigger psychological and physiological distress; sleep disturbances and nightmares; and emotional numbing and detachment from others. In a May 2012 Psychology Treatment Note, the examiner reported the Veteran experiences short term memory deficit. In April 2013 Psychiatry Notes, the Veteran reported he is still having nightmares and flashbacks and that he wakes from the nightmare scared, sweating, and crying. He reported a sad mood, hypervigilance, anxiety, and intentional isolation. In a June 2013 Psychology Treatment Note, the examiner reported the Veteran experiences short term memory deficit. In the July 2014 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran reported he "...is falling apart," his wife manages his finances, and he needs help from her every day to sustain himself. In March 2015, the Veteran's sister submitted a lay statement. She reported the Veteran was not socializing, had fallen into a pattern of substance abuse to cope with everyday life, was very distant, and did not attend family gatherings. She reported the Veteran calls her crying and asking for help. In March 2015, the Veteran's spouse submitted a lay statement. She reported the Veteran's attitude about life has changed and he has become more frustrated, been depressed, stays in bed till late, lays around for days, and his emotions are unpredictable. She reported she sometimes does not "...see him for a whole night and day, that's when we know he is hurting...." In March 2015, the Veteran's other sister submitted a lay statement. She reported the Veteran is not socializing and stays at home because of his paranoia and "jumpiness." She reported the Veteran spends more time in his room than with his children and sometimes will call her after waking up from a nightmare, crying, asking for help. 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. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records. Prior to March 23, 2016, the Veteran's symptoms and level of impairment more closely approximate 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, including family relations, judgment, mood, and work because of suicidal ideation, difficulty interacting with strangers, angry outbursts, crying spells, hypervigilance, social isolation, and difficulty establishing friendships and effective relationships. The Veteran's VA treatment records show he reported feeling depressed, reported suicidal ideations, difficulty adapting to work stress, and angry outbursts. The lay statements of record indicate the Veteran isolates, experiences a strained relationship with his spouse, and does not have any friends. The preponderance of evidence is against a finding that the Veteran has manifest the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders or others of similar severity, frequency, and duration, or experienced total occupational and social impairment at any point in the appeal period. There is no evidence that suggests the Veteran has manifest the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders or others of similar severity, frequency, and duration. In fact, the Veteran's reported symptoms are specifically listed in the criteria for ratings at or below 70 percent. The Veteran denied experiencing auditory or visual hallucinations and delusions and he regularly denied suicidal and homicidal ideations. He was alert and oriented to person, place, and time and appeared well groomed and appropriately dressed at his medical appointments. His speech was spontaneous, coherent, and goal directed. The Veteran has also not manifested grossly inappropriate behavior and does not appear to be a persistent danger to harming himself or others. Accordingly, a 70 percent rating for PTSD from July 16, 2010 to March 22, 2016, to exclude a period of temporary total hospitalization rating (from March 2, 2015 to June 30, 2015) under 38 C.F.R. §4.29, is warranted and, to that extent, his appeal is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II, to include due to exposure to chemical weapons or toxins during the Gulf War is remanded. The Court noted deficiencies in the August 2019 VA examination, which the Board relied on to deny the Appellant's claim. The August 2019 examiner provided a negative nexus opinion, in part, because the "...issue of having been exposed to certain drugs/chemicals is likewise unfounded in causing diabetes. Thus, one cannot presume that exposure to the environmental hazards in the GW were causative of diabetes." The Court found this opinion inadequate because the examiner did not explain why the chemicals that the Appellant was exposed to did not cause his specific condition. See Bailey v. O'Rourke, 30 Vet.App. 54, 60 (2018) ("VA examiner's opinion was inadequate as to the issue of direct service connection because the medical examiner's rationale was based solely on general articles and did not discuss any facts pertaining to [the veteran's] condition or individual circumstances, including any risk factors that may contribute to that particular type of cancer."). Further, the Court noted the Board erred when it did not explain how the August 2019 medical opinion was adequate in light of the examiner's failure to provide an adequate rationale as to why the Appellant's exposure to Gulf War chemicals did not cause his diabetes. Accordingly, a remand is necessary to obtain an adequate examination. 2. Entitlement to a TDIU, prior to March 23, 2016, is remanded. The issue of entitlement to a TDIU, prior to March 23, 2016, is intertwined with the diabetes mellitus, type II, disability issue remanded above and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine whether the diagnosis of diabetes mellitus, type II, is related to the Veteran's military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran's active service, including but not limited to exposure to chemical weapons or any other environmental hazards in the Southwest Asia theater of operations. The examiner should address the Veteran's lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record. (Continued on the next page) All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. If the examiner relies on medical literature to support his or her etiology opinion, the examiner must cite to the specific medical literature relied upon and explain how it relates to the specific facts of the Veteran's case and not just to the population as a whole. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.