Citation Nr: 21072413 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-00 399 DATE: December 3, 2021 ORDER A 50 percent rating for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a rating in excess of 50 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's PTSD has been productive of occupational and social impairment with reduced reliability. CONCLUSION OF LAW Throughout the appeal period, the criteria for a 50 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2001 to March 2002 and from February 2003 to September 2004, to include service in Kuwait. In December 2018, the Board remanded the issue of entitlement to a rating in excess of 30 percent for PTSD for additional development, to include a VA examination. The Veteran presented sworn testimony at a hearing before the undersigned in September 2021. At the September 2021 Board hearing, the Veteran raised the issue of entitlement to a TDIU. The issue of entitlement to a TDIU is part and parcel of an increased rating claim when such issue is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Entitlement to a rating in excess of 30 percent for PTSD. The Veteran's PTSD is currently rated at 30 percent, effective June 25, 2013 under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula), which provides a 30 percent rating is warranted when the evidence shows occupational and social impairment with 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), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating when the evidence shows 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. A 70 percent rating is warranted when the evidence shows 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows 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; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 (2002). 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 Veteran's PTSD is currently rated at 30 percent, effective June 25, 2013. He contends that his PTSD is more severe than the currently assigned rating and that he is entitled to a higher rating. See September 2021 Hr'g Tr. The Veteran's treatment records show the Veteran had issues with worsening irritability but denied suicidal ideation or any other issues. He reported symptoms including variable mood, depression, anxiety at times and hypervigilance. See May 2019 Primary Care Note; see also May 2019 Mental Health Outpatient Note. As previously noted, in December 2018, the Board remanded this issue for additional development, to include a contemporaneous examination. The Veteran was afforded a VA examination in September 2019. The examiner summarized the Veteran's impairment as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms by medication. The Veteran's symptoms included: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. See September 2019 PTSD DBQ. In the September 2019 addendum opinion, the examiner opined that the Veteran first experienced symptoms associated with PTSD surrounding his deployment in Iraq while serving in the military. She noted, the Veteran continues to endorse the following symptoms: feeling emotionally overwhelmed in crowds and social settings, struggling to sit with his back to windows and doorways and doorways in public and avoids shopping or driving during peak hours, frequent aggression in his tone when speaking to others, struggling to stay asleep, decreased appetite, hypervigilance, irritability and isolation from others. See September 2019 Medical Opinion DBQ. At the September 2021 Board hearing, the Veteran testified, that he has continued to have intrusive thoughts since his time in Iraq. He reported that throughout the appeal period, he has had anger issues and that his anger would become so severe that he would have chest pains. He testified that he is hypervigilant, jumpy and lacks sleep. He has few friends and a very limited social life. He stated he retired from his job because he wanted to focus on getting better. He attested that he could not focus on his job due to his PTSD and that it made it difficult to get along with his colleagues. See September 2021 Hr'g Tr. In this case, the Veteran's PTSD has been characterized by symptoms such as depressed mood, chronic sleep impairment, anxiety, hypervigilance and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.7, 4.130; see also May 2019 Mental Health Outpatient note; September 2021 Hr'g Tr. In light of the foregoing, the Board finds that the criteria of at least 50 percent for the entire appeal period have been met REASONS FOR REMAND 1. Entitlement to a rating in excess of 50% for PTSD is remanded. The Veteran seeks an increased rating for his service-connected PTSD. The Veteran was last afforded a VA examination in September 2019. The Veteran's attorney asserts that the September 2019 VA examination is contradictory. At the September 2019 examination, the Veteran reported symptoms more severe than the examiner's summary of the Veteran's occupational and social impairment. Additionally, at the September 2021 Board hearing, the Veteran testified to intrusive thoughts, trouble getting along with others, isolating himself, angry so severe that it resulted in chest pains, hypervigilance and difficulty sleeping. He also, stated that he is in treatment at the VA center and now on mediation. The Board finds that reexamination is needed to ascertain the current severity of the Veteran's PTSD, as the Veteran's testimony indicates his PTSD may have worsened since his last VA examination in September 2019. Accordingly, the Board must afford the Veteran a contemporaneous examination to evaluate the nature, extent and severity of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (VA regulations specifically require the performance of a new medical examination when evidence indicates that there has been a material change in a disability). 2. Entitlement to a TDIU is remanded. The Veteran asserts that he is unable to work due to his service-connected PTSD disability. See September 2021 Hearing Transcript. The Board finds that further development is needed to ascertain the Veteran's current level of education, special training, and previous work experience, as such is unclear and central to his claim because he has not completed and filed a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), which is necessary for VA to adjudicate this issue. The Board requests that the Veteran complete and submit a VA Form 21-8940. Additionally, the Veteran's claim for TDIU is inextricably intertwined with his claim for an increased rating for the service-connected PTSD. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent, and severity of his service-connected PTSD and the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Furnish the Veteran with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and request that he complete and submit it in conjunction with the TDIU claim. Inform him that failure to complete and submit this form may negatively impact his claim. 3. Obtain all outstanding treatment records regarding the Veteran's claim. 4. Schedule the Veteran for a VA examination to determine the current nature, extent and severity of his psychiatric disability. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.