Citation Nr: 21072610 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 14-19 209 DATE: December 3, 2021 ORDER Entitlement to a disability rating of 70 percent for service-connected PTSD, from August 30, 2007 to December 9, 2020 (the date of the Veteran's death), is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 3, 2010, is granted. FINDINGS OF FACT 1. The Veteran's service-connected PTSD was manifested by symptoms approximating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, from August 30, 2007 to December 9, 2020. 2. Prior to February 3, 2010, the Veteran's service-connected disability rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 70 percent for service-connected PTSD were met from August 30, 2007 to December 9, 2020. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 3, 2010, were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to December 1976. He died in December 2020, and the appellant is the Veteran's surviving spouse. 38 U.S.C. § 101(3). She has been recognized as the appellant as a substitute claimant for the Veteran's claims that were pending when he died. See June 2021 VA correspondence, 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. It is necessary to clarify the procedural posture of this case, as the Veteran had two appeals pending prior to his death. First, a February 2018 rating decision granted service connection for PTSD, assigning a 30 percent rating effective August 30, 2007. Following a notice of disagreement, a June 2019 rating decision (issued with the Statement of the Case) increased the rating to 50 percent effective May 21, 2016. A substantive appeal (Form 9) was received in August 2019. Second, the Veteran had an appeal pending of a denial of TDIU in a February 2013 rating decision. That claim was denied by the Board in August 2018, but that denial was then vacated to give the Veteran an opportunity to appeal the initial PTSD rating prior to considering the TDIU claim. In April 2019, the TDIU claim was remanded. In the August 2019 Form 9 appealing the increased rating for PTSD and a December 2019 Form 9 following the SSOC continuing to deny TDIU, the Veteran's representative requested a hearing before the Board. Such a hearing was scheduled for February 2021, but, as noted above, the Veteran passed away in December 2020. The representative has not, in the course of representing the surviving spouse, requested a hearing on her behalf. The Veteran, had, however, had a hearing before the undersigned in July 2014, at which he testified concerning his claim for service connection for PTSD and for TDIU. In connection with a special review of the file, an August 2021 rating decision, in pertinent part, granted TDIU effective February 3, 2010 to the Veteran's death on December 9, 2020. However, the Veteran had filed for TDIU in 2008 and 2012 based on PTSD, which was then pending an award of service connection. Once that claim for PTSD was granted with a 2007 effective date, the claim for TDIU was part and parcel of the appeal for a higher rating since it was both formally and informally raised as part of the service connection claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the award of TDIU with a 2010 effective date was not a full grant of the benefit sought on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). While additional evidence has been obtained and associated with the Veteran's claims file since the issuance of a December 2019 supplemental statement of the case (for TDIU) and a June 2019 statement of the case (for increased rating claim for PTSD), a waiver of the RO's initial consideration of the additional evidence has been submitted. See October 2021 correspondence. Having reviewed the record, the Board finds that there has been substantial compliance with the previous Board remand instructions, as the requested VA treatment records have been obtained. Stegall v. West, Vet. App. 268, 270-71 (1998). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. A 30 percent evaluation is warranted 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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 effective work and social relationships. A 70 percent evaluation is warranted where the disorder is manifested by 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 disability evaluation is warranted where 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 or place; memory loss for names of close relatives, own occupation, or own name. 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, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. 1. Entitlement to a higher disability rating for service-connected PTSD Prior to his death, the Veteran submitted a private psychiatric questionnaire (conducted in February 2019) in support of a higher disability rating for his service-connected PTSD. In a September 2018 correspondence, the Veteran's representative pointed specifically to (1) the May 2016 VA examination documenting the Veteran's neglect of his personal hygiene and the May 2016 VA medical addendum showing that "the Veteran may intermittently neglect hygiene and his appearance, although this is not routine and would not preclude employment," in support of at least a 70 percent rating, and (2) the May 2016 VA examination's finding showing "some recent, vague thoughts of suicide" which the representative argued are consistent with the treatment records completed by the Veteran's treating physician, Dr. P. H., who regularly documented the Veteran's thoughts of suicide in her treatment records (ie. referencing the treatment records dated April 30, 2010 containing the Veteran's report of thoughts of taking his own and having such thoughts "periodically," as well as treatment records dated March 7, 2012, containing report of taking his own life "weekly for years"). At the time of his death, the Veteran was service-connected for PTSD with a 30 percent disability rating, prior to May 21, 2016, under diagnostic code (DC) 9411, and a 50 percent rating thereafter, until December 9, 2020, the date of the Veteran's death. Prior to May 21, 2016 The Veteran's treatment records prior to May 21, 2016 show fleeting and passive, yet frequent ,thoughts of suicide, without specific plans or intent (see March 2008 VA treatment records, frequent thoughts of suicide, but "talk[ed] myself out of them"; see February 2008 VA treatment records, "admitted fleeting thoughts of suicide but without plan or intent"; experiences suicidal thoughts several times a day but without plans; see April 2010 private treatment records, the Veteran reporting thoughts of taking his own, which he said happens "periodically"; see March 2012 private treatment records, including report of taking his own life "weekly for years"), and impaired impulse control (see January 2008 VA treatment records, reported that his anger and his high demands for himself and others have led to numerous interpersonal problems and difficulties in employment. Reported repeatedly becoming angry at his family and admitted yelling at his elderly parents and feeling bad about it; see February 2008 VA treatment records, depression with anger; see September 2008 VA treatment records, reported medications helping him control his anger; see December 2008 VA treatment records, less irritable and has better temper control, but noted that he got involved in an argument with a mechanic few weeks ago; see October 2009 VA treatment records, "irritability/anger/control: reports extreme road rage and a tendency to yell and curse at people. prefers to be alone but acknowledged he goes to the casinos to block out everything and everybody"; see April 2010 VA treatment records, report of anger/irritability/labile mood swings; see January 2012 VA treatment records, showing problem of anger control; see February 2013 VA treatment records, reported having flares at home (anger) and a history of "road rage" without legal consequences; see March 2015 VA treatment records showing "mood/affect were angry/upset; we have dealt with [anger] issues and was able to let go of anger"; report of a road rage incident in which the Veteran felt cut off by another driver and sped up in front of that driver and demanded that he pull over). Considering the severity and the frequency of episodes involving "impaired impulse control" and suicidal ideations, the Board finds that the Veteran's psychiatric symptoms most closely approximated that of a 70 percent. Initially, as concerning any symptoms of suicidal ideation, the Board recognizes that the 70 percent rating criteria do not distinguish between active and passive suicidal ideation and that, in some cases, the mere presence of suicidal ideation (ranging from passive thoughts of one's own death to active thoughts of engaging in suicide-related behavior), may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, "VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment." Bankhead, 29 Vet. App. at 22 (internal citations omitted). In this case, although the Veteran periodically manifested passive thoughts of committing suicide, in light of the frequency/duration of such thoughts upon its onset (ie. for weeks, multiple times a day), the Board finds that such amounts to the level of 70 percent rating. More importantly, the evidence of record suggests that he frequently manifested anger control issues (ie. angry outbursts/irritation with little or no provocation), accompanied by periods of verbal or physical violence. Thus, the Board finds that the Veteran warranted a 70 percent rating prior to May 21, 2016. The Board has also considered whether the Veteran was entitled to the next higher rating of 100 percent under DC 9411, but finds such inapplicable. The Veteran never exhibited gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; or intermittent inability to perform activities of daily living; or persistent danger of hurting self/others. Even though there was evidence of severe irritability/temper/anger issues with little or no irritation, it does not appear that such episodes amounted to the level of persistent danger of hurting self/others (ie. one incident involving road rage (sped up in front of a car and demanded he pull over) and one incident of getting into an argument with his mechanic; and otherwise, mostly periods of verbal aggression without implications for physically endangering others, such as yelling/cursing at others during the episodes of anger/temper issues; suicidal ideations manifested only in a form of passive thoughts without specific plans). Thus, in light of these findings, the Board finds the Veteran's PTSD warranted a 70 percent, and no higher, rating prior to May 21, 2016. Since May 21, 2016 As noted earlier, the Veteran was granted a 50 percent thereafter from May 21, 2016 to December 9, 2020, under diagnostic code (DC) 9411. A May 2016 VA examination indicates that the Veteran's psychiatric condition can be best summarized as "occupational and social impairment with reduced reliability and productivity." The Veteran reported during that time becoming frustrated and angry easily, but denied recent violent or destructive behaviors. He also acknowledged a history of suicidal ideation and one possible suicide attempt in the 1980s when he drove erratically because of divorce issues, as well as recent vague thoughts of suicide without intent or plan, but also stated that his concerns about family would deter self-harm. However, the examiner at the time also underlined that the Veteran was an "uncertain historian who complained of poor memory and word finding problems that are likely related to his medical status" and "often an uncertain historian." He was found to present symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and neglect of personal appearance and hygiene. However, despite the finding of "neglect of personal appearance and hygiene," he was also noted to be "groomed with an unremarkable appearance." A September 2016 VA medical addendum opinion indicates the Veteran's mild memory problems and variable concentration difficulties may make it difficult for him to carry out tasks but were "likely to be only moderately impairing," as well as "irritability/anger and social detachment [that] may cause him some difficulties interacting with others or receiving supervision" which are considered "moderately impairing." Additionally, his sleep problems were noted to cause fatigue and affect his work productivity to a mild/moderate degree, and intermittent neglect of hygiene and appearance although noted to be not occurring routinely and not precluding employment. A January 2018 DBQ addendum opinion references the Veteran's social security administration (SSA) records from 2007, which includes the Veteran's report of his mental state "totally gone, thoughts of suicide" and him having stopped working due to his PTSD (as due to his inability to get along with people). An August 2018 DBQ examination, completed by a private clinical psychologist, showed the Veteran's symptoms of difficulty in adapting to stressful circumstances, unprovoked hostility and irritability, deficiencies in judgment, inability to establish and maintain effective relationships, and depression affecting the ability to function independently, appropriately, and effectively. The Veteran was noted to present "markedly limited" ability to get along with co-workers without exhibiting behavioral extremes; ability to accept and respond appropriately to criticism from supervisors; ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and "moderately impaired" ability to maintain socially appropriately behavior and to adhere to basic standards of nearness and cleanliness and the ability to respond appropriately to changes in the work setting. The private clinical psychologist opined that the Veteran's psychiatric impairments would cause him to be absent from work for more than three times a month, and that it would be "highly unlikely" for the Veteran to be capable of performing gainful employment due to his psychiatric conditions as "his interpersonal difficulties would likely be too much of an impediment." A February 2019 private questionnaire completed by a private psychiatric mental health nurse practitioner (PMHNP) shows symptoms of unprovoked hostility and irritability; inability to establish and maintain effective relationships; depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances; intermittent inability to perform activities of daily living (but there was no indication of "neglect of personal appearance and hygiene); panic or depression affecting the ability to function independently, appropriately, and effectively; and deficiency in family relations (but do not indicate any symptoms for suicidal ideation). The PMHNP further noted that the Veteran had "markedly limited" ability to get along with co-workers without exhibiting behavioral extremes; ability to accept and respond appropriately to criticism from supervisors; ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, and ability to respond appropriately to changes in the work setting. As for the ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness, the Veteran was noted to be "mildly limited." Ultimately, the PMHNP stated the Veteran's psychiatric impairments would cause him to be absent from work for more than three times a month, and that he would not be able to perform gainful employment due to his psychiatric conditions. His treatment records also consistently show upset/angry mood and impaired impulse control, such as unprovoked irritability with periods of violence (see June 2018 VA treatment records, "has become more irritable over the past years, with anger, rage, and poor impulse control. He got out of his vehicle, chased down a man and verbally and physically challenged him off the side of the road. The Veteran states he feels he has no self-control, "it just happens." Out of fear and embarrassment, he has been isolating to the house for well over a year"; see December 2018 VA treatment records, "agrees he is more angry, irritated and resentful"; February 2019 VA treatment records, "highly irritated in loud and crowded spaces"). After reviewing all pertinent records, the Board finds that a 70 percent rating, but no higher, was warranted for the Veteran's service-connected PTSD, from May 21, 2016 to December 9, 2020. Throughout the VA/private examinations conducted throughout this period, the Veteran was noted to present symptoms of impaired impulse control involving anger control, unprovoked hostility and irritability (ie. unprovoked irritability with periods of violence occurring regularly and frequently), as well as the inability to establish and maintain effective relationships (ie. usually due to his anger/temper issues), with such frequency and severity that approximated a 70 percent rating. The Board also considered whether a higher rating of 100 percent is warranted, but finds such not applicable. The Board recognizes that the symptoms of "moderately impaired" "ability to adhere to basic standards of neatness or cleanliness" (August 2018 private psychiatric examination) and "intermittent inability to perform activities of daily living" (February 2019 private psychiatric questionnaire) noted in two private examinations. However, during the August 2018 examination, there was no evidence of even the "intermittent inability to perform activities of daily living." In addition, despite the findings of the August 2018 and February 2019 questionnaires, the voluminous contemporaneous medical treatment records show evidence suggestive of neglect of personal appearance and hygiene, at worst (October 2020 VA treatment records, "well groomed, pleasant, appearing stated age"; October 2019 VA treatment records, "general appearance: casually dressed in no acute distress"; May 2019 VA treatment records, "neatly dressed"; November 2017 VA treatment records, "grooming and hygiene are within normal limits"), and even during the February 2019 questionnaire, there was no indication of personal appearance and hygiene. In summary, the Board finds that the Veteran's symptoms most closely approximated that of 70 percent, but no higher, from May 21, 2016 to December 9, 2020. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 3, 2010 Prior to passing away, the Veteran alleged that his service-connected PTSD precludes him from securing or following substantially gainful occupation. As noted earlier, while the RO granted TDIU effective February 3, 2010 to December 9, 2020, to the extent that he claimed TDIU as due to his service-connected PTSD, the Board finds that entitlement to a TDIU prior to February 3, 2010 is still on appeal. Initially, the Board notes that with the grant of a 70 percent herein, there is a one service-connected disability (PTSD) rated 70 percent, effective August 30, 2007. Thus, schedular TDIU criteria under 38 C.F.R. § 4.16(a) have been met prior to February 3, 2010. Therefore, a TDIU is warranted if the evidence shows that Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, considering his specific educational and employment background, but without regard to age, non-service connected disabilities, or previous unemployability status. See 38 C.F.R. §§ 4.16(a), 4.19. After a full review of the record, the Board finds that this is the case here. Therefore, entitlement to a TDIU prior to February 3, 2010, is granted. Prior to passing away, the Veteran indicated in the February 2012 Application for Increased Compensation Based on Unemployability that he last worked on a full-time basis on April 15, 2007 and that he earned no income during the past 12 months. On his March 2008 Application for Increased Compensation Based on Unemployability, he indicated that he last worked full time in July 2007, and noted that he last worked in parking lot maintenance for 40-60 hours per week, from November 2006 to January 2007. His prior positions included warehouse manager and distribution manager. With regards to his educational history, it appears he had either up to 2 or 3 years of college education. See VA 21-8940 forms. An April 2008 VA 21-4192 form provided by the Veteran's most recent employer shows that the Veteran worked full-time (40 hours/week) from October 2006 to July 2007 at the parking lot maintenance. While there is no indication that any time was lost during the 12 months preceding the last date of employment due to disability or that any concession was made by reason of disability/age, the former employer did state that the reason for termination of the Veteran's employment was "PTSD." The Veteran's treatment records include reports of being angry at work by others not doing their jobs and feeling angered/frustrated. He denied physical aggression but reported verbal aggressions. He also reported his high demands for himself and others, as well as anger issues, that had led to numerous interpersonal problems and difficulties in employment. He also reported frequently quitting jobs due to frustration and avoiding getting angry to the point where he would hurt others. He had difficulty maintaining employment and was unemployed for 16 months. See November 2009 VA treatment records; January 2008 VA treatment records. Upon consideration, the Board finds that an entitlement to a TDIU is warranted prior to February 3, 2010. Despite the Veteran's education level (either 2 or 3 years of college education), the medical evidence of record extensively discussed in the section immediately above consistently documents symptoms of impaired impulse control, unprovoked hostility and irritability, interpersonal difficulties/markedly restricted ability to get along with coworkers without exhibiting behavioral extremes, passive thoughts of suicide, and difficulty establishing and maintaining effective work/social relationships due to service-connected PTSD (see February 2019 private psychiatric questionnaire, August 2018 DBQ examination, May 2016 VA examination, September 2016 VA medical addendum opinion). As the types of work similar to those the Veteran had held in the pastie. warehouse manager/distribution manger/parking lot maintenance workprimarily involved frequent interactions with others, administrative/supervision work, all of which tend to frequently require tasks involving interpersonal/communication skillsand the Veteran's symptoms associated with his PTSD condition would directly interfere with the ability to engage in gainful occupation. Therefore, the Board finds that a TDIU prior to February 3, 2010, is warranted in this case. On balance, the evidence is at least in equipoise that the effects of the Veteran's service-connected PTSD rendered him unable to secure and follow a substantially gainful occupation prior to February 3, 2010. Affording the benefit of the doubt, entitlement to a TDIU prior to February 3, 2010, is granted. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.