Citation Nr: 21073681 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-53 027A DATE: December 9, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 1, 2016 is remanded. FINDING OF FACT During the appeal period, the Veteran's PTSD more closely approximates occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, but was not productive of total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in March 2020 for further development. The Board is satisfied that there was substantial compliance with the prior remand with regards to the increased rating claim for PTSD. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) The Veteran testified at a hearing before the undersigned in March 2020. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a disability rating in excess of 70 percent for PTSD from December 10, 2016 is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509 10 (2007). The Veteran's PTSD is currently rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 70 percent rating is warranted for 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); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead, 29 Vet. App. at 22. The Board notes that the Diagnostic and Statistical Manual, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14,308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 224 26 (2018). In reaching the below conclusions, the Board has considered the Veteran's statements regarding the severity and frequency of psychiatric symptoms. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of psychiatric symptomatology. Washington v. Nicholson, 19 Vet. App. 362 (2005). Thus, in the assignment of each of the ratings, the Veteran's statements have been weighed in with the medical evidence during each of the staged periods as discussed below. In the December 2016 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), the Veteran reported that he had left his last job due to loss of sight in his right eye, PTSD, and inability to sit or stand for long periods of time. His depression, stress, and emotional issues caused conflicts with employees and management at work. In a January 2017 VA examination for PTSD, the Veteran was diagnosed with PTSD which resulted in occupational and social impairment with reduced reliability and productivity. His psychiatric symptoms included depressed mood, anxiety, 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, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran reported having anxiety, panic attacks, nightmares resulting in difficulties sleeping, depression, irritability (specifically towards his wife), hypervigilance, and startle response. He disliked being in crowds and preferred to be inside. He stated that he did not feel safe in some places. The Veteran had stopped working as a barber over two years prior. He stated that his employer had given him "a lot of chances," but that his employer had gotten "tired of it" and let the Veteran go. Sometimes, the Veteran fought with some of the employees. The Veteran lived with his wife and reported some marital discord due to his outbursts and nightmares. He had to sleep in another room. He had also been involved in an altercation with his wife's son who was living with them. The Veteran did not believe that the son should have been living with them as he was a grown man. The Veteran attended church and went fishing and indicated that he felt safe when he did so. At the March 2020 hearing, the Veteran asserted that his PTSD had worsened and resulted in an inability to obtain and maintain substantially gainful employment. He reported having a hard time with employment because he had difficulties dealing with people and had become withdrawn. At his previous employment at the barber shop, he was involved in altercations with two people, one of whom he fought with twice. The altercations were both physical and verbal. While working at the barber shop, he sometimes felt angry towards others without knowing why. He reported waking up angry and having nightmares almost every day. The Veteran did not "get out much" and stayed at home often. He was by himself the majority of the time. He had marital problems due to his PTSD. He became emotional about "some things" and indicated had committed violence against his wife in his sleep. They did not sleep in the same bed and argued almost every day. The Veteran also isolated himself, had short term memory loss, and had suicidal thoughts. His suicidal thoughts began a few years ago and were intermittent. They had increased in the past year. He stated that he had hallucinations about the war, but clarified that these were flashbacks. He sometimes became frantic while watching television because it gave him flashbacks. He could mostly take care of his hygiene, but had times when he would not shower for a couple of days. In a May 2020 VA examination for PTSD, the Veteran was diagnosed with PTSD which resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. His psychiatric symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, flattened affect, 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 with no intent or plan. His most significant symptoms included nightmares, poor sleep, mood fluctuation, flashbacks, hypervigilance, irritability, fatigue, and isolation. He continued to struggle with sleep disturbance, nightmares, suicidal ideation, mood dysregulation (to include emotional distress), fatigue, hypervigilance, startle response, and feelings of guilt. The Veteran demonstrated and test results showed severe depression and moderately severe anxiety. His psychiatric symptoms continued to impact his personal life and it was noted that he was constantly worried about his marriage, health, and overall future. The Veteran did not have many friends and was primarily by himself. He was distrustful of people and disliked crowds as they caused severe anxiety. As such, he disliked leaving his home. He had relationship problems with his wife due to his irritability. The Veteran would sometimes hit and kick his wife during his sleep. His flashbacks were triggered by things associated with the military, such as helicopter sounds or loud noises. According to VA treatment records from January 2016 to April 2020, the Veteran's symptoms included depression, lack of motivation, isolation, irritability, frustration, anger (including outbursts), hypervigilance, being easily startled, nightmares, difficulties sleeping, restless sleep (including "fights" in his sleep or grabbing his wife), flashbacks, intrusive memories, and intermittent suicidal ideation (such as in April 2016, August 2017, and February 2019). He reported forgetfulness and losing track of time, including forgetting to take medication, specifically bupropion. However, it was noted that he described his concentration and energy as "alright" and that he could independently perform instrumental activities of daily living, including paying bills and administering medication. The Veteran reported being under stress and depressed due to his medical conditions (i.e., losing sight in right eye and low back pain) and inability to work resulting in financial hardship. He realized that his voice was loud when he became angry or emotional and worked on his communication skills to be firm, but not loud. The Veteran consistently reported having relationship issues with his wife and a bad relationship with her adult son. He and his wife would have arguments over her adult son living with them and other members of her family, such as her sister and niece. However, the Veteran had good contact with his siblings (two brothers and two sisters) and his daughter. He was generally socially isolative, but would go to his former barber shop to talk to the people there, including his former coworker/friend. He also used the computer to watch news and connect with his friends. The Veteran also coped with his PTSD symptoms with his hobbies, including fishing, music, art, and photography. He also attended church and a group for people older than 62 years old called "Jewles." Mental status examinations showed that the Veteran was alert, cooperative, and oriented with grossly intact cognitive functioning, normal speech, and normal thought processes and content. His mood ranged from "great" to depressed to irritated and frustrated and his affect was either congruent or euthymic. He had fair or good insight, fair or intact judgment, and fair impulse control. Based on a careful review of all the subjective and clinical evidence, the Board finds that from December 10, 2016, the Veteran's PTSD does not warrant a disability rating in excess of 70 percent. In other words, the Veteran's PTSD was mostly closely characterized by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, but was not productive of total occupational and social impairment. In that regard, the Board finds that the following provides the most probative evidence demonstrating the frequency, severity, and duration of the Veteran's mental health symptomatology as well as its functional impact and that such falls within the criteria for a 70 percent rating: (1) January 2017 VA examination findings that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity; (2) May 2020 VA examination findings that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood; (3) VA treatment records showing that the Veteran was working on his communication skills, could independently perform instrumental activities of daily living, including paying bills and administering medication, and coped with his PTSD symptoms with his hobbies, including fishing, music, art, and photography, church, and "Jewles;" (4) mental status examination showing that the Veteran was alert, cooperative, and oriented with grossly intact cognitive functioning, normal speech, and normal thought processes and content, and that he had fair or good insight, fair or intact judgment, and fair impulse control; and (5) the Veteran's statements that he had good contact with his four siblings and daughter, and connected with his friends through the computer or by visiting his former barber shop. While the Veteran has occupational and social impairment, the record does not show that he has total occupational or social impairment. While the Veteran had difficulties interacting with others, he has a few friends and a relationship with his family, such as his wife, siblings, and daughter. Collectively, the Board finds that the psychiatric symptoms shown do not support the assignment of a 100 percent rating at any point since December 10, 2016. Accordingly, the Board finds that during the appeal period, the evidence does not support awarding a disability rating in excess of 70 percent for PTSD. Therefore, the Board concludes that the Veteran's PTSD is no more than 70 percent disabling, and the claim is denied. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, is remanded. 2. Entitlement to a TDIU prior to December 1, 2016 is remanded. September 2018 and February 2019 VA treatment records show that the Veteran likely has paresthesia and/or anemia secondary to his diabetes. However, the March 2017 and November 2020 VA examiners did not appear to consider these records, finding that the Veteran did not have complications due to his service-connected diabetes mellitus and, as a result, did not evaluate the severity of these potential complications. As such, the Board does not enough information to appropriately rate the current severity of the Veteran's diabetes mellitus, type II. Thus, a remand to obtain an addendum opinion is warranted. The Board finds that the claim of entitlement to TDIU is inextricably intertwined with the remanded claim for increased rating for diabetes mellitus, type II. The appropriate remedy for an inextricably intertwined issue is to remand it pending resolution of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Obtain an addendum VA opinion from an appropriately qualified examiner, regarding the nature and etiology of the Veteran's paresthesia and/or anemia. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the record, the examiner must address whether the Veteran's paresthesia and/or anemia are complications of or at least as likely as not (approximately 50 percent probability or greater) due to his service-connected diabetes mellitus, type II. In doing so, the examiner should consider the September 2018 and February 2019 VA treatment records indicating that these conditions were due to the Veteran's diabetes. If the examiner finds that either condition is a complication of or due to the Veteran's diabetes mellitus, s/he must evaluate the severity of the condition. A complete rationale for any opinions must be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, Associate 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.