Citation Nr: 21072601 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-18 371 DATE: December 3, 2021 ORDER Entitlement to a 70 percent rating for PTSD, but no higher, is granted from September 3, 2014. REMANDED Entitlement to a TDIU on an extraschedular basis prior to September 3, 2014 is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's PTSD symptoms most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran does not have total occupational and social impairment due to PTSD. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for service-connected PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.20, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the VA Regional Office (RO). The Board previously remanded this matter for additional development in January 2020. A January 2020 rating decision granted a 60 percent rating for ischemic heart disease and granted entitlement to a TDIU from September 3, 2014. Because the Veteran's NOD limited the appeal for ischemic heart disease to entitlement to a 60 percent rating, the RO's decision is considered a grant of the full benefit sought. Accordingly, the issue of entitlement to an initial rating in excess of 60 percent for ischemic heart disease is no longer on appeal. The grant of TDIU from September 3, 2014 was not a full grant of the benefit sought because the appeal period began on September 3, 2013, one year prior to the claim for a TDIU. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018). Increased rating for PTSD PTSD is rated under the General Rating Formula for Mental disorders. Under the rating criteria, a 10 percent evaluation is assignable for occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational and social tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent evaluation is assignable for 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 is assigned when there is 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/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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); inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is 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 and place; memory loss for names of close relatives, own occupation or name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Under the 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; 38 C.F.R. § 4.130. An April 2013 rating decision granted service connection for PTSD. A temporary evaluation of 100 percent was assigned from September 21, 2012. A 50 percent rating was assigned from November 1, 2012. The Veteran did not file a notice of disagreement and did not submit new and material evidence within a year of the April 2013 rating decision, and it became final. A claim for an increased rating was received in September 2014. An April 2015 rating decision continued a 50 percent evaluation for PTSD. The Veteran contends that a 70 percent rating is warranted for PTSD. See August 2015 Notice of Disagreement. VA treatment notes dated in November 2014, December 2014, and January 2015 noted that the Veteran was well-dressed and groomed and oriented times three. His thought processes appeared coherent. His speech was clear and tone and cadence normal. He did not exhibit loose associations. His judgement and insight were good. He denied homicidal and suicidal ideation. The Veteran was afforded a VA examination in March 2015. He reported nightmares, flashbacks, sleep problems, poor appetite, memory problems, decreased concentration, irritability, feelings of persistent anger, interpersonal problems, and socially isolating himself. The Veteran reported that interpersonal problems were the reason for his two divorces. He reported that he sought help through VA to keep his family together. He reported socially isolating himself to avoid conflict with others. The Veteran reported that he did not have friends and did not have a desire to make friends. The examiner noted that the Veteran's symptoms included depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. He was competent to manage his financial affairs. A March 2015 mental status examination showed that his cognitive function was within normal limits. He was oriented to time, place, and person. He had short-term memory impairment. His mood was euthymic with congruent affect. His speech was normal. He denied suicidal and homicidal ideation. He did not report auditory or visual hallucinations. In an April 2017 statement, the Veteran reported that his life was in disarray. He stated that he has anger management problems. He stated that he retired and moved from Chicago back to Mississippi to rekindle his marriage. The Veteran stated that he attends church but otherwise rarely ventures from his home. He stated that he is a loner but socializes with his immediate family and with a couple of other veterans. He stated that he is suspicious of everyone and is temperamental with his family. The Veteran stated that he does not want to be bothered with anyone but his immediate family. The Veteran was afforded a VA examination in February 2020. He reported chronic and persistent irritability, frustration, and anger management and needing to go off by himself and get away from others. The Veteran denied any legal or behavioral problems since the last examination in March 2015. He specifically denied any problems with physical violence, while acknowledging chronic and persistent verbal aggressiveness. The Veteran acknowledged difficulty with irritability and anger that continued to cause problems in his relationship with his wife. He acknowledged that he has difficulty being around others and prefers to spend the majority of his time alone. He did report that he is close to his 20-year-old daughter, who lives at home, and in regular contact with his two sons. A mental status examination showed that the Veteran was alert and oriented. He had a flat affect with irritability. The VA examiner noted that the Veteran was not uncooperative but appeared to have difficulty clarifying his symptoms. He denied suicidality, visual and auditory hallucinations, and poor impulse control. The examiner found that the Veteran was capable of managing his financial affairs. Throughout the appeal period, the evidence has consistently shown social impairment due to PTSD symptoms. The Veteran has reported that he does not interact with people socially, other than his immediate family and a few veterans, and rarely ventures outside of his house. Upon review, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's PTSD is productive of occupational and social impairment, with deficiencies in most areas during the rating period. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. The VA examinations, treatment records, and lay statements, do not support a finding that the Veteran has total occupational and social impairment as a result of PTSD or manifests any of the symptoms listed in the 100 percent rating criteria, or other symptoms of similar severity, frequency, or duration. The evidence does not show total occupational and social impairment that warrants a 100 percent rating. The evidence does not show symptoms associated with a 100 percent rating. Treatment records reflect that he has been assessed as well-oriented and competent to manage his financial affairs. The evidence does not reflect that he experiences persistent delusions of hallucinations, disorientation to time and place, or gross impairment of communication. His VA examinations and treatment records indicate that he has mild memory impairment. He does not have memory loss for names of close relatives, his own occupation, or his name. The Veteran's listed symptoms more nearly approximate the criteria for a 70 percent rating. The evidence does not show any complaints or findings of symptoms that are not listed in the rating criteria. While the Veteran has been granted a TDIU due to his occupational impairment, he is not totally socially impaired. The VA examinations and the Veteran's statements indicate that the Veteran has social relationships with his immediate family and some other veterans and also attends church. Thus, although he has limited social interactions due to his PTSD symptoms, he does not have total social impairment. REASONS FOR REMAND Entitlement to a TDIU on an extraschedular basis prior to September 3, 2014 is remanded. In his TDIU claim, the Veteran indicated that he has been unemployable due to his service-connected disabilities since August 13, 2012. The Veteran has met the schedular criteria for TDIU under 4.16 (a) since September 3, 2014. The Board is precluded from awarding TDIU on an extraschedular basis in the first instance. Thus, the Board will refer the Veteran's claim of entitlement to a TDIU to the Director of Compensation Service. The matters are REMANDED for the following action: The AOJ must refer the matter of entitlement to a TDIU to the Director, Compensation Service for a determination as to whether the Veteran is entitled to an assignment of a TDIU prior to September 3, 2014 under the provisions of 38 C.F.R. § 4.16 (b). J. Nichols Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.