Citation Nr: 21074146 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-52 710 DATE: December 14, 2021 ORDER Entitlement to a 70 percent evaluation for posttraumatic stress disorder (PTSD) is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to an evaluation higher than 70 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT During the period on appeal, the Veteran's PTSD symptoms have more nearly approximated the criteria for at least a 70 percent evaluation due to occupational and social impairment with deficiencies in work, thinking, and mood due to symptoms of suicidal ideation, neglect of personal hygiene, impaired impulse control, and difficulty in adapting to stressful circumstances. CONCLUSION OF LAW The criteria for at least a 70 percent evaluation for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Army from May 1966 to March 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) with June 2017 notification letter. The Board denied entitlement to an evaluation higher than 50 percent for PTSD in a November 2019 decision. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court granted the parties' Joint Motion for Remand (JMR), vacated the November 2019 decision, and remanded the matter back to the Board for action consistent with the JMR. In October 2021, the Veteran filed a claim for a TDIU and reported he was unable to secure or follow a substantially gainful occupation due to PTSD symptoms. A claim for a TDIU rating is part and parcel of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, in light of the Veteran's contentions, the Board finds that the issue of entitlement to a TDIU is raised by the record, is part and parcel of the higher rating claim, and is properly before the Board. Entitlement to an evaluation higher than 50 percent for PTSD. The Veteran seeks a 100 percent evaluation for PTSD, or alternatively, a 70 percent evaluation for PTSD along with a TDIU. See October Appellate Brief. The Board concludes that the Veteran's symptoms have more closely approximated the symptoms associated with at least a 70 percent rating, and have resulted in a level of impairment that most closely approximates the level of impairment associated with at least a 70 percent rating during the entire claim period. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged evaluations are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different evaluations. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Formula for Mental Disorders (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 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under the General Formula, a 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. In this case, the Veteran's claim for an increased rating for PTSD was received by VA on March 22, 2017, and the relevant time period for consideration is from March 22, 2016 onward. The available evidence shows the Veteran's thought processes have been impacted by intermittent suicidal ideation without intent or plan. The Veteran endorsed symptoms of fleeting suicidal ideation at December 2016, August 2017, November 2019, and July 2020 VA appointments. The Veteran also evidenced neglect of personal hygiene. In August 2017 he reported that sometimes during periods of significant depression, he did not shower for up to 5 days. The record also shows impaired impulse control, particularly in the form of irritability with road rage. At a December 2016 VA appointment, the Veteran expressed difficulty with anger management. A January 2017 VA examiner noted symptoms of irritability and problems with anger while driving. February 2017 VA treatment notes document the Veteran was irritable, and that he would get upset with other drivers on the road. That record further notes the Veteran previously worked as a truck driver. April 2017 VA notes report the Veteran had anger outbursts and road rage. A May 2017 VA examiner documented PTSD symptoms of irritable behavior with angry outbursts. Further, the Veteran has difficulty adapting to stressful circumstances. He described difficulty traveling and difficulty being in public due to anxiety. See e.g. September 2020 VA treatment note. The Veteran also reported a chronic bad mood when he had to be out in public or interact with the public at large. See e.g. January 2018 VA treatment note. The VA treatment notes also show additional symptoms of sleep impairment with nightmares, anxiety, intrusive thoughts and memories, a hypertstartle response, hypervigilance, tendency to socially isolate, guilt, lack of energy, feelings of helplessness and hopelessness, emotional detachment, nervousness, lack of interest in usual activities, lack of motivation, and difficulty concentrating. See February 2017 VA treatment notes; see June 2017 VA treatment notes; see August 2019 VA treatment notes; see July 2020 VA treatment notes. The examiners who conducted January 2017 and May 2017 VA psychiatric examinations determined that the Veteran had occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. During the period on appeal, the Veteran's PTSD symptoms have caused occupational and social impairment with deficiencies in work, thinking, and mood due to symptoms of suicidal ideation, neglect of personal hygiene, impaired impulse control, and difficulty in adapting to stressful circumstances. Despite the findings of the VA examiners, the evidence is at least evenly balanced as to whether the Veteran's overall symptomatology has more nearly approximated the criteria for at least a 70 percent rating when considering the totality of the record. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to at least a 70 percent evaluation for PTSD for the entire claim period is warranted. As a final matter, the Board finds that, in conjunction with the claim for an increased rating for PTSD, other than the issues of entitlement to an evaluation higher than 70 percent for PTSD and entitlement to a TDIU, which are addressed below, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to an evaluation higher than 70 percent for PTSD is remanded. 2. Entitlement to a TDIU is remanded. The Board notes that in October 2021 the Veteran explicitly waived any additional development, to include obtaining additional VA treatment records or securing an updated VA examination report. The Veteran requested that instead, the Board decide the claim based on the evidence of record. Although the Veteran waived any further development and requested adjudication based on the evidence of record, the Board is unable to fully grant the Veteran's increased rating claim based on the evidence of record, and a remand is required. The Veteran's attorney submitted a private medical examination in October 2021 from Dr. MC that documents more severe findings than are reflected in the available treatment records. Dr. MC reported that the Veteran last worked in 2006, and his symptomatology created an unsafe work environment for fellow employees, supervisors, and the public. Although the Veteran was forced to remove himself from the workforce due to colon cancer, his mental illness severity continued to worsen. Dr. MC opined that since at least January 2015, the Veteran would have been inappropriate for a modern workplace due to his psychiatric symptomatology and he struggled to function in basic social settings. Dr. MC found that the Veteran was incapable of work due to PTSD symptoms of poor focus and concentration, altered task completion, unpredictability, volatility, impaired thought process including suicidal ideation, severely impaired communicative ability, and threatening behavior. Dr. MC noted that the Veteran would have been unable to manage interactions with coworkers and supervisors without becoming highly agitated, or safely drive a truck due to road rage. Dr. MC reported that the Veteran no longer got along with anyone and was "pulling away from everyone." He also reported that his dissociative symptoms had worsened and sometimes he could see and hear Vietnam's actual environment, and that his mood swings had become so severe that he was afraid of his behaviors. He also described panic attacks, anxiety, and a complete change in his capacity to function in a prosocial fashion. Overall, Dr. MC concluded that the Veteran has been "completely unemployable and socially impaired from at least 2015." Currently available VA treatment records and prior VA examination reports do not support Dr. MC's finding of complete occupational and social impairment. For example, throughout the claim period the Veteran has maintained regular participation in group therapy where he acted appropriately, and the Veteran described feeling connected to fellow veterans in that setting and benefiting from the socialization. See e.g. January 2017 VA treatment notes; see June 2017 VA treatment notes; see August 2019 VA treatment notes. When group therapy meetings were suspended due to COVID-19, the Veteran reported that he missed the group and called to talk to some of the members by phone. See May 2020 VA treatment notes. Also, the Veteran consistently described having a good, long-term marriage. See e.g. April 2019 VA treatment notes. He also regularly communicated with friends and family from out of state. See June 2019 VA treatment notes; see October 2019 VA treatment notes; see May 2020 VA treatment notes. The Veteran also volunteered at a horse farm working with disabled children until he was unable to do so due to a fall. See November 2017 VA treatment notes; see August 2018 VA treatment notes. Although the record does document difficulty with road rage, the record also shows the Veteran is able to successfully transport himself to regular VA appointments multiple times per month. See May 2017 VA examination report. VA treatment records are silent for any dissociative episodes with delusions, and routine mental status examinations were largely unremarkable. In light of the inconsistencies between the record and Dr. MC's report, the Board finds that it is insufficient to fully grant the Veteran's request for either a 100 percent rating for PTSD or, alternatively, to a TDIU. Further, the Veteran has not had a VA examination to assess the severity of his service-connected psychiatric disability since May 2017 and there is an indication that the Veteran's symptoms have worsened since that time. Although the Veteran has waived his right to additional development, as the Board cannot fully grant the claim at present, remand for a current examination is prudent. Also, the AOJ has not adjudicated the claim of entitlement to a TDIU due to service-connected disability and the Board is unable to grant the claim based on the current evidence. On remand, the agency of original jurisdiction (AOJ) should undertake all necessary development regarding the Veteran's TDIU claim and make a finding in the first instance. The Veteran appears to receive regular mental health treatment at a VA medical facility. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Lastly, the report of a January 2015 VA psychiatric examination indicates that the Veteran had been in receipt of Social Security Administration (SSA) disability benefits for unspecified disability. Any outstanding records pertaining to the Veteran's claim for SSA benefits may be relevant to the issue of entitlement to a TDIU. Hence, the AOJ should attempt to obtain any such relevant records upon remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the Omaha Vista electronic records system for the period since July 2020; and all such relevant records from any other sufficiently identified VA facility. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Send the Veteran a letter that provides him with notice as to the information and evidence that is required to substantiate his claim for a TDIU and undertake all appropriate development related to his October 2021 TDIU claim. 3. Contact the SSA and request a copy of that agency's decision(s) for disability and/or supplemental security income benefits and all relevant records pertaining to such claim(s). Document all requests for information as well as all responses in the claims file. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, provide the Veteran with an appropriate examination to determine the severity of his service-connected psychiatric disability. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. (CONTINUED ON NEXT PAGE) The examiner is requested to comment on the degree of occupational impairment from PTSD in light of the Veteran's job history and training, to specifically include the impact of irritability and road rage in the context of the Veteran's past career as a truck driver. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.