Citation Nr: 21071049 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 19-08 465 DATE: November 29, 2021 ORDER For the entire appeal period, a disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with major depressive disorder is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected posttraumatic stress disorder (PTSD) with major depressive disorder has been manifested by symptomatology more nearly approximating occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW For the entire appeal period, the criteria for a 70 percent disability rating, but no higher, for posttraumatic stress disorder (PTSD) with major depressive disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board acknowledges that VA treatment records and VA examinations were made part of the file after the issuance of the last statement of the case (SOC), dated January 2019. However, these VA treatment records and examinations are not pertinent to the increased rating claim on appeal. Additionally, given the favorable outcome for the increased rating claim for PTSD with major depressive disorder, the Board will adjudicate the matter as it is not prejudicial to the Veteran. The Board also acknowledges that the claim for TDIU is part and parcel of the increased rating claim. Therefore, the Board has taken jurisdiction, as reflected by the title page. For reasons that will be discussed below, the TDIU claim is being remanded. The Veteran testified before the undersigned Veterans Law Judge in a November 2021 Board hearing. Increased Rating Psychiatric disabilities, such as PTSD, are evaluated under the General Rating Formula for Mental Disorders (pertinent portions listed below). See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent disability rating requires 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. Id. A 70 percent disability rating requires 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); or inability to establish and maintain effective relationships. Id. A 100 percent disability rating requires 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. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the United States Court of Appeals for the Federal Circuit (Court) has held "that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran filed his claim for an increased disability rating in July 2017. He contends that his anxiety disorder is more severe than contemplated by the 50 percent disability rating assigned. Specifically, in his February 2018 notice of disagreement he requested a 70 percent disability rating and during the November 2021 Board hearing he testified that an assignment of 70 percent would satisfy his appeal. As the Veteran has limited his appeal to 70 percent, the Board will focus on whether the evidence supports a 70 percent rating for the entire period on appeal. See A.B. v. Brown, 6 Vet. App. 35 (1993) (a Veteran may limit his appeal to a particular disability rating which is less than the maximum allowed by law). The Board does note, however, that a 100 percent rating is not warranted at any time during the appeal period as the evidence does not show total occupational and total social impairment. When assessing whether a 70 percent rating is warranted for the Veteran's PTSD, the evidence that will be referenced include four private assessments and one VA examination that fall within the appeal period. The Veteran has been treated by a private therapist since May 2017. The four assessments performed, dated between May 2017 and October 2021, illustrate symptoms consistent with a 70 percent rating. Specifically, the Veteran has endorsed the following symptoms: suicidal ideation; obsessional rituals which interfere with routine activities, 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) and neglect of personal appearance. During the October 2018 assessment, the examiner noted that the Veteran's PTSD symptoms have continued to exacerbate his social and occupational functioning. The examiner stated that his concentration and memory have become poor, his level of hypervigilance has increased, his judgment has been impaired, and his decision-making skills were questionable. The therapist concluded that the Veteran has been suffering from obsessional rituals that have been interfering with his day-to-day life and that his impairments have made it difficult to effectively function on a day-to-day basis. The March 2021 and October 2021 assessments reflect that since the start of Covid-19 the Veteran's isolation and withdrawal has increased. Additionally, the political and current events with the United States have exacerbated his symptoms. He exhibited a fear of impending doom, feeling as though he needs to prepare for a civil war. He appeared disheveled. He reported experiencing suicidal ideation and homicidal ideation throughout his life; however, denied any plan or intent. The examiner concluded that the Veteran's level of impairment resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner's conclusion of the Veteran's level of impairment as well as the symptoms described above are consistent with a 70 percent rating. Additionally, the Veteran's relationships and work history are consistent with a 70 percent rating. Throughout the appeal period, the record illustrates that although the Veteran has been in a long-term relationship with his girlfriend and reports a good relationship with his family, his PTSD symptoms have severely and negatively impacted his relationship with his girlfriend. He also does not have a good relationship with the mother of his son/ex-wife, or his son, stating that he "hates me because I hate his mother." Also, despite being employed as a truck driver for 20 years, his PTSD symptoms have caused flashbacks while on the job, resulting in him putting a protestor in the hospital, and has caused him to be fired multiple times because of his anger problems and difficulty getting along with bosses. The Board recognizes that the August 2017 VA examiner concluded that the Veteran's level of impairment resulted in occupational and social impairment with reduced reliability and productivity, which is more consistent with a 50 percent rating. Notwithstanding, the totality of the evidence most nearly approximates criteria consistent with a 70 percent rating, to include a showing that the Veteran's PTSD manifested in the most severe symptoms of suicidal ideation and obsessional rituals. In short, the Board finds that the Veteran's PTSD with major depressive disorder most nearly approximated occupational and social impairment with deficiencies in most areas throughout the entire appeal. Therefore, a 70 percent rating for his PTSD with major depressive disorder is warranted for the entire appeal period. This decision represents a full grant of the benefit sought on the appeal. REASONS FOR REMAND Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based on individual unemployability (TDIU) is part of an initial rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. As described above, there are mental health treatment records in evidence that describe how the Veteran's PTSD has impacted his employment. As such, a claim of entitlement to a TDIU has been raised by the record. During the November 2021 hearing, the Veteran's representative described his intent to submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Although, a letter authored by the Veteran's private therapist was uploaded shortly after the hearing, to date a VA Form 21-8940 has not yet been submitted. As a VA Form 21-8940 or the requisite information has yet been submitted, on remand, the Veteran should be permitted opportunity to submit documentation to support his TDIU claim. The Agency of Original Jurisdiction (AOJ) should send the Veteran proper notice and request that he complete a VA Form 21-8940. Thereafter, the TDIU claim must be adjudicated by the AOJ. The matter is REMANDED for the following action: 1. The AOJ is to provide the Veteran with VA Form 21-8940 for the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. After performing any necessary development, adjudicate the matter of entitlement to TDIU. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.