Citation Nr: 21073343 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-14 800 DATE: December 8, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a chronic respiratory condition is remanded. Entitlement to service connection for a chronic cardiovascular condition is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence of record does not demonstrate that the Veteran's PTSD caused total occupational and social impairment at any time during appeals period. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2000 to May 2002. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ); a transcript of that hearing is of record. 1. Entitlement to an initial rating in excess of 70 percent for PTSD The Veteran contends that an initial rating in excess of 70 percent is warranted for his service-connected PTSD. At the hearing, for this issue the Veteran waived RO consideration of evidence added to the record since the January 2017 statement of the case. The August 2013 rating decision on appeal granted service connection for PTSD with an initial 70 percent rating from August 30, 2011. The Veteran disagreed with the initial rating. Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where a claimant is awarded service connection and assigned an initial disability rating, the question for consideration is the propriety of the initial evaluation assigned since the grant of service connection. See Fenderson v. West, 12 Vet. App. 119, 125-27 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Rating Formula for Mental Disorders, Diagnostic Code 9411, the criteria for a 70 percent rating are 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. The criteria for a 100 percent rating are 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 ability 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the 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). Evidence A VA examination was conducted in July 2013. The examiner noted diagnoses of PTSD and personality disorder, not otherwise specified. The examiner indicated that the Veteran's mental disorders resulted in 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 controlled by medication. The examiner stated: Based on the nature of his personality problems, it is not possible to differentiate which diagnosis is accounting for which aspect of his impairment. His social and legal problems began before his reported trauma, and he appears to be functioning well overall, despite incarceration. He is actively participating in work and treatment, and has maintained social relationships in which he has regular contact. Due to his personality style, the likelihood that his reported PTSD symptoms were somewhat exaggerated is increased, and these symptoms do not appear to be interfering significantly with his current functioning, though they are impacting his distress level. The examiner noted symptoms of depressed mood; chronic sleep impairment; impaired judgment; difficulty in establishing and maintaining effective work and social relationships; impaired impulse control, such as unprovoked irritability with periods of violence; and grossly inappropriate behavior. On examination, the Veteran was seen in the medical ward of the prison and was dressed in his blue prison uniform with satisfactory grooming and hygiene. He was dysphoric with a range of affect, tearing up at times when discussing his trauma. He was cooperative and aspired to present himself in a positive light. He tended to have superficiality to his emotional responses and seemed to say what he thought the examiner would want to hear, and he appeared to exaggerate his symptoms to some degree. He was goal-oriented, alert, and did not exhibit unusual or disorganized behavior, speech, or thoughts. Judgment appeared good, insight fair. He denied suicidal/homicidal ideation. The examiner stated that the Veteran's reported symptoms met the criteria for a PTSD diagnosis that was related to a traumatic stressor he experienced during military service. However, based on this examination, it was difficult to say definitively the exact nature and severity of his current symptoms due to his comorbid personality disorder. The examiner indicated that overall, the Veteran appears to be functioning with limited occupational and social impairment, despite his reported distress, as evidenced by his ability to work with minimal to no reported problems, both in and out of prison. The examiner also noted that socially, the Veteran was involved in prison community activities and has regular contact with family and at least one friend currently. His social impairment related to his significant and sexual relationships appears to be the result of his personality problems more than his PTSD symptoms, per se. On VA examination in October 2016, the examiner stated that the Veteran's mental disorders resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner stated that given the unspecified personality disorder and unspecified paraphilic disorder existed prior to his military service and are the disorders responsible for his court-martial in the military and two subsequent prison terms for sexual misconduct with minors (AZ prison from 2003-2007, and NV prison from 2010-present), the unspecified personality disorder and unspecified paraphilic disorder are combined most likely responsible for at least 75 percent of his current impairment. The PTSD is at most responsible for 25 percent of current impairment. The Veteran reported he worked approximately 16 hours per week in the "wood shop;" he described himself as a "hard worker;" and he occasionally has difficulty concentrating while at work, which he believed reduced his work efficiency at times. The examiner endorsed symptoms of depressed mood; anxiety; chronic sleep impairment; impaired judgment; difficulty in establishing and maintaining effective work and social relationships; and grossly inappropriate behavior. The examiner stated that the Veteran was seen at the Northern Nevada Correctional Facility. Grooming and hygiene were good. He was alert and cooperative throughout the examination. He was oriented times 4. Expressive speech was fluent; thought processes were logical. Veteran described his mood as "not great"; affect was euthymic. He denied any current suicidal/homicidal ideation, plan, or intent. There were no indications of delusions, hallucinations or other signs of frank psychosis. Insight and judgment were fair. On VA examination in September 2018, the examiner stated that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he was currently living with his father for the past six months following release from prison. He was going through divorce proceedings. He reported he had been looking for work but had difficulty getting hired due to his prison history. The examiner endorsed symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and impaired impulse control, such as unprovoked irritability with periods of violence. On examination, the Veteran's grooming was intact. He was able to establish rapport. Mood and affect were irritable, dysphoric. His speech had regular rate and rhythm. Thoughts were organized, goal directed, and linear. No psychotic thought processes were present. He had no suicidal or homicidal ideas. Memory and concentration were intact. Insight and judgment were intact. On VA examination in August 2020, the examiner stated that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he got along with his father but that they don't speak often. He had a difficult relationship with his sisters. His mother had dementia and he did not speak to her. He had been married for five years but said he did not communicate or spend time with his wife; she lived in California and he made excuses not to visit her. They were likely going to divorce. He did not have children. The Veteran reported that he had no friends and did not participate in social activities. He worked out, watched TV and played video games. He also attended church weekly. The Veteran reported that since his last evaluation he had tried school but failed two classes. He had not been employed. He had applied to several agencies without success. The examiner endorsed symptoms of depressed mood; anxiety; panic attacks weekly or less often; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and suicidal ideation. On examination, the Veteran was adequately groomed and casually dressed. His eye contact was good. He was alert and oriented x4 and could recall three presidents' names. His speech was normal in rate and volume. There was no evidence of delusions or obsessions. He appeared to be a good historian. The Veteran's thought processes were linear. Judgment and Insight appeared fair. Intellectual ability appeared average. His mood was euthymic, and affect was broad. The examiner stated that the Veteran's service-connected PTSD "impair[s] his ability to work with others due to anxiety. He would likely be able to work on his own, or remotely without problem." A December 2020 VA treatment record noted the Veteran was "attending general college credits at Western Nevada College and is taking English and math courses." The Veteran reported he had a good social support system and was future oriented. He denied any thoughts of wanting to harm or kill himself or others. The Veteran submitted a private vocational assessment dated in December 2020. The Vocational Rehabilitation Counselor opined that the Veteran's PTSD "is the very reason he is unable to work. Furthermore, he is not working and has never worked since leaving the military....The features of PTSD include 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." She disagreed with the VA examiner who opined that the Veteran could work remotely, stating that this "demonstrates that they know little or nothing about an individual's ability to acquire and maintain employment. Further, the Veteran has no work readiness skills or resources for coping strategies. Clearly, the lack of knowledge on the part of the VA is unfair to the Veteran. It predisposes that the examiner knows something about working remotely or working alone. The combination of his emotional liability and physical impairments make it impossible for [the Veteran] to work in any gainful occupation." On VA examination in January 2021, the examiner characterized the Veteran's PTSD as resulting in 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 controlled by medication. "PTSD may interfere with social relationships, especially the ability to interact with others in an effective manner. PTSD may interfere with his ability to handle conflict with others and his ability to regulate his emotions." The Veteran reported that he was still legally married to his wife of 5 years. They had been separated for several years. She lived in California. He stated that they were planning to divorce. He did not report any current relationships. The Veteran reported he had many college classes but had not been able to complete a degree. He had difficulty concentrating. He lived with his father and was not employed. His father assisted him financially. The Veteran reported his longest job lasted three months. He reported he could not focus and became anxious when employed. He was not looking for work. He had recently failed two 'voc tech' classes. The examiner endorsed symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. On examination, the Veteran was agitated and irritable. He was somewhat dramatic. He spoke rapidly. He was alert and orientated. He had casual dress. He was somewhat distractible. His thinking was logical and goal-directed. There was no evidence of loose association, perseverations, tangential thinking, or other symptoms of psychosis. He had some difficulties in regulating his mood. There was evidence of psychomotor agitation. His memory was intact. Judgment and insight were fair. He denied and suicidal or homicidal ideation. The examiner stated that the Veteran's PTSD was responsible for: depression, anxiety, suspiciousness, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The ADHD was responsible for his distraction and difficulties in concentrating. With respect to employment, the examiner stated that PTSD "may interfere with the Veteran's interactions with co-workers and supervisors. It can increase irritability and decrease socials skills. He may have more difficulties in regulating his emotions and accepting directions." A September 2021 VA treatment record noted the Veteran was alert and oriented times four. He had good grooming and hygiene, and was dressed in clean clothes. His speech was fluent and thought processes were linear, logical and goal-oriented. The Veteran denied any hallucinations, and no delusions/illusions were noted. The Veteran denied current suicidal or homicidal ideations, thoughts, plans or intent. His cognition was grossly intact. Analysis The Board finds that the weight of the evidence of record is against finding that the Veteran's PTSD has resulted in total occupational and social impairment at any time during the appeal period. That is, staged ratings are not warranted. The 70 percent initial rating the Veteran currently has is indicative that he has serious impairment in terms of his ability to establish and maintain effective relationships and in terms of his occupational functioning. Regarding occupational functioning, the evidence does not reflect total occupational impairment due to PTSD. The VA examiners in July 2013, October 2016, September 2018, August 2020, and January 2021 did not find total occupational impairment. The Veteran was noted to work in the wood shop while in prison, and he has been able to attend college classes off and on during the appeals period. The Veteran has himself attributed his inability to find work to his prison history. Further, the evidence does not reflect total social impairment. The evidence of record has showed that the Veteran has an ongoing relationship with his father and has referred to a good social support system. He also was noted to attend church weekly. Thus, the evidence does not reflect total social impairment, which is required for a 100 percent rating at any time during the appeals period. The Veteran has consistently been shown to be alert and oriented, with no delusions or hallucinations. None of the examinations of record found gross impairment in thought processes or communication, persistent delusions or hallucinations, or disorientation to time or place. In short, the Veteran did not experience the gross distortion of reality (e.g., thought processes or communication, persistent delusions or hallucinations, and disorientation to time or place) described in the criteria for a 100 percent rating at any time during the appeals period. The Board has considered the assertion of the Veteran and his attorney that he underreported symptoms (including suicidal ideation and self-harm) to the examiners during his VA examinations in prison due to fear of shame, reprisal, ridicule, and being put in solitary. However, the Board finds that the examinations conducted while the Veteran was in prison (the July 2013 and October 2016 examinations) are largely consistent with those conducted after his release (the September 2018, August 2020, and January 2021 examinations). There is no indication that the Veteran's report of symptoms changed significantly when he was no longer in prison. Nor is their assertion that the early VA examiners "missed stuff" supported by a review of the record. The examination reports included detailed histories from the Veteran as well as thorough reports of symptoms and accounts of the Veteran's appearance and functioning. The Board has considered the opinion of the Vocational Rehabilitation Counselor that the Veteran's PTSD is the "very reason he is unable to work." However, the Board finds that this opinion is outweighed by the five VA examiner's opinions of record, each of which was based on a review of the record and examination of the Veteran. The Board finds that the opinions of these qualified medical professionals as to the Veteran's occupational impairment are consistent with each other and the overall record. In sum, the evidence fails to reflect that the Veteran's symptomatology overall more closely approximates the frequency of symptoms and degree of severity that is contemplated by a total rating at any time. Thus, staged ratings are not appropriate as a rating in excess of 70 percent is not warranted at any time. The appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for a chronic respiratory condition is remanded. 2. Entitlement to service connection for a chronic cardiovascular condition is remanded. With respect to the Veteran's claims for service connection for respiratory and cardiovascular disabilities, the Veteran and his attorney declined to waive RO consideration of additional evidence, including CAPRI records, added to the record since the January 2017 statement of the case. Additionally, the Veteran's attorney submitted additional evidence subsequent to the hearing in September 2021 that he wished to be reviewed by the RO. Accordingly, these issues are remanded for initial consideration of the evidence In this regard, the RO should undertake any additional development deemed necessary in light of the new evidence submitted by the Veteran and his attorney, to include securing any addendum opinions. 3. Entitlement to TDIU is remanded. The Veteran contends that he has not worked during the appeals period due to PTSD. As such, a claim for TDIU is part-and-parcel of his claim for a higher initial rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal period in question is the same as the effective date of the grant of service connection for his PTSD, which is from August 30, 2011. The Board notes that the Veteran was incarcerated from 2011 until either 2017 or 2018, which is a significant portion of the relevant appeal period. The Board also observes that the matter of entitlement to TDIU was also appealed under the modernized appeals system. At any rate, it would be premature to adjudicate entitlement to a TDIU at this time in the 'Legacy' system as the issue is intertwined with the remanded service connection issues. In this regard, the December 2020 Vocational Rehabilitation Counselor opined that the combination of the Veteran's emotional liability and physical impairments [specifically referring to his respiratory and cardiovascular disabilities] make it impossible for [the Veteran] to work in any gainful occupation." Thus, consideration of this issue is deferred pending the outcome of the development of the service connection issues. The matters are REMANDED for the following action: The AOJ should review all evidence received since the January 2017 statement of the case, to include CAPRI records and the evidence submitted by the Veteran's attorney subsequent to the September 2021 hearing. After any additionally indicated development has been completed, to include obtaining any need addendum medical opinions, readjudicate the claims. If any benefit sought is not granted, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.