Citation Nr: 21074153 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-19 762 DATE: December 14, 2021 ORDER The character of the Veteran's discharge for the period of service from September 7, 2013 to January 11, 2015 is not a bar to VA compensation benefits; the appeal is granted. Entitlement to an increased rating of 70 percent disabling for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an increased rating in excess of 70 percent disabling for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran had three periods of active duty: from October 2004 to March 2005, September 2008 to September 2012, and from September 2012 to September 2013. The Veteran also served on active duty from September 2013 to January 2015. For the period of service from September 7, 2013 to January 11, 2015, he received a discharge under other than honorable conditions, due to misconduct. 2. During his final period of service, the Veteran was convicted in civilian criminal court for vehicular manslaughter. 3. The Veteran was discharged "under conditions other than honorable" effective January 11, 2015; his DD214 indicates a narrative reason for discharge as "unacceptable conduct," with a separation code of BNC, which is an administrative separation code for misconduct or moral or professional dereliction. 4. The Veteran has been diagnosed as having PTSD and insomnia. 5. There is evidence that the Veteran's diagnosed insomnia contributed to the in-service motor vehicle accident. 6. The evidence is equipoise as to whether insomnia, or alcohol use, was the proximate cause of the MVA, and subsequent discharge from service. 7. Throughout the appeal period, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW 1. The character of the Veteran's discharge from service for the period from September 7, 2013 to January 11, 2015 is not a bar to the award of VA benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.1(d), 3.12. 2. The criteria for a disability rating of 70 percent for the Veteran's 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 on active duty from October 2004 to March 2005, September 2008 to September 2012, and from September 2012 to September 2013, including service in Afghanistan from December 2012 to August 2013. The Veteran also served on active duty from September 2013 to January 2015. He received an under other than honorable conditions discharge in January 2015. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2016 administrative decision and an August 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. At the October 2021 Board hearing, the undersigned Veterans Law Judge agreed to hold the record open to provide the Veteran the opportunity to submit additional evidence in support of his appeal. The Veteran has done so and this evidence will be considered by the Board in the adjudication of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part and parcel of an increased rating claim when raised by the record. In his October 2021 Board testimony, the Veteran asserted that his PTSD symptoms have prevented him from gainful employment. Because the issue of entitlement to a TDIU is part and parcel of a claim for a higher rating for his PTSD, the Board has jurisdiction of this issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Whether the Veteran's period of service from September 7, 2013 to January 11, 2015 is a bar to VA benefits. The Veteran essentially seeks "veteran" status for his period of service from September 7, 2013 to January 11, 2015. He contends his character of discharge for this period of service should not be a bar to VA compensation benefits. He also contends that he suffered from insomnia, due to his diagnosed PTSD, which was the cause of the misconduct underlying his discharge from service. Relevant Law For benefits purposes, a "veteran" is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101 (2); 38 C.F.R. §§ 3.1 (d), 3.315. VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant's service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12(a). The designation of the discharge as dishonorable by the service department is binding on VA as to character of discharge. 38. C.F.R. § 3.12(a). Service department findings (i.e., the Army, Navy, and Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have authority to alter the findings of the service department. 38 C.F.R. § 3.203 (a); Spencer v. West, 13. Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 240, 241 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Manlincon v. West, 12 Vet. App. 238 (1999). VA has no authority to alter the claimant's discharge classification, and the claimant's recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994), A dishonorable discharge, a statutory bar, or a regulatory bar deprives the claimant of all gratuitous VA benefits. Such a discharge, statutory bar, or regulatory bar is binding on VA as to the character of discharge unless an exception, such as insanity, applies. 38 C.F.R. § 3.12. Specifically, there are two types of character of discharge bars establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c) and regulatory bars listed in 38 C.F.R. § 3.12(d). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c): (1) as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) by reason of the sentence of a general court martial; (3) resignation by an officer for the good of the service; (4) as a deserter; (5) as an alien during periods of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) by reason of discharge other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition). As to the regulatory bars, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court martial; (2) mutiny or spying; (3) an offense involving moral turpitude (including, generally, conviction of a felony); (4) willful and persistent misconduct (including a discharge under other than honorable conditions, if it is determined it was issued because of willful and persistent misconduct; however, a discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious); and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). A discharge or release because of willful and persistent misconduct is also considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). An act is willful misconduct when it involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard for, its probable consequences. 38 C.F.R. § 3.1(n). A discharge because of a minor offense is not considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious; however, "offenses that would interfere with the appellant's military duty, indeed preclude their performance...are not minor." Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Cropper v. Brown, 6 Vet. App. 450, 452 453 (1991). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). Mere technical violations of police regulations or ordinances will not per se constitute willful misconduct, and willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. 38 C.F.R. § 3.1(n)(2), (3). Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n). See also 38 C.F.R. § 3.302 (1990) ("A person of unsound mind is incapable of forming an intent (mens rea or guilty mind, which is an essential element of . . . willful misconduct)"). In interpreting the phrase, the VA construed the term "willful misconduct" to refer to an act of conscious wrongdoing, involving elements of intent and voluntariness. See 52 O.G.C. Prec. Op. 215, 216 (May 23, 1928) (applying a definition of "willful misconduct" as referring to "an act proceeding from a will; done of a purpose; 'implying not only a knowledge of a thing, but a determination with a bad intent to do it or to omit doing it.'"); 66 O.G.C. Prec. Op. 270, 272 (Feb. 26, 1931) (finding of willful misconduct requires "something in the nature of conscious wrongdoing, that is, the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences."). The VA incorporated this definition of "willful misconduct" into VA regulations in 1948 (former 38 C.F.R. § 3.65(c) (1948) (defining "willful misconduct" as being "'malum in se' or 'malum prohibitum' if involving conscious wrongdoing or known prohibited action.")). Allen v. Principi, 237 F.3d 1368, 1378-79 (Fed. Cir. 2001). The simple drinking of alcoholic beverage is not of itself willful misconduct; however, the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2). Alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(d). Stated in other terms, a finding of willful misconduct, defined as "an act involving conscious wrongdoing or known prohibited action," negates the statutory presumption that a disease or injury was incurred in the line of duty. Daniels v. Brown, 9 Vet. App. 348, 351 (1996); 38 C.F.R. § 3.1(n). A veteran cannot receive VA compensation for a disability that is the result of willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 105(a), 1110. A person is held responsible for disabling injuries or death that resulted directly and immediately from indulgence in alcohol on an individual occasion. Willful misconduct in cases involving alcohol consumption is the willingness to achieve a drunken state and, while in this condition, to undertake tasks for which the person is unqualified, physically and mentally, because of the resulting intoxication. Determinations of willful misconduct in such instances depend on the facts found. Exercise care to guard against findings of willful misconduct on the basis of inconclusive evidence. An adverse determination requires that there must be excessive indulgence as the proximate cause of the disability or death in question. In determining willful misconduct, laboratory tests bearing on the issue of alcoholic intoxication together with all other facts and circumstances should be considered. 38 U.S.C. § 105(a) establishes a presumption in favor of a finding of line of duty. If it is determined that an exception to the line of duty does apply (such as willful misconduct), and the claim is denied solely on the basis of such exception, it must be established that the denial of the claim was justified by a preponderance of the evidence. Thomas v. Nicholson, 423 F.3d 1279, 1284-85 (Fed. Cir. 2005); Daniel v. Brown, 9 Vet. App. 348, 351 (1996); Smith v. Derwinski, 2 Vet. App. 241, 244 (1992). Additionally, the element of knowledge of or wanton or reckless disregard of the probable consequences must be specifically addressed. Myore v. Brown, 9 Vet. App. 498, 503-04 (1996). A service department finding that injury, disease or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. 38 C.F.R. § 3.1(n). The term "moral turpitude" is not defined in 38 C.F.R. § 3.12(d)(3), but it is defined in Black's Law Dictionary as "conduct that is contrary to justice, honesty, or morality." Black's Law Dictionary (8th ed. 2004). Additionally, in a published advisory opinion, VA's General Counsel indicated that moral turpitude is the element of a willful act committed without justification or legal excuse, which gravely violates moral standards and which, by reasonable calculation, would be expected to cause harm or loss to person or property. See VAOPGCPREC 6-87 (Fed. 5, 1988). Furthermore, 38 C.F.R. § 3.12(d)(3) indicated that an offense involving moral turpitude generally includes a conviction of a felony. If a statutory or regulatory bar exists, VA benefits may still be granted if it is established at the time of the offense leading to the discharge that the claimant was insane. 38 U.S.C. § 5303(b). The burden is on the claimant to submit competent medical evidence that he was insane at the time of his/her offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). A discharge under dishonorable conditions bars the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12 (b). For the purpose of this regulation, an "insane" person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs so as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354 (a). A service department finding that injury, disease or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. 38 C.F.R. § 3.1(n). Factual Background The Veteran's service records show that he was discharged on January 11, 2015 under other than honorable conditions due to commission of misconduct. On December 7, 2013, the Veteran was involved in a motor vehicle accident which resulted in the death of another person. Specifically, the Veteran drove his vehicle into oncoming traffic while under the influence of alcohol and collided with an oncoming vehicle resulting in the death of another person. The Veteran was subsequently arrested for violation of Section 125.15(1) of the Penal Law of the State of New York in that on December 7, 2013, while having a blood alcohol count (BAC) of .16, he drove his vehicle into oncoming traffic, thereby causing the death of another person. In August 2014, the Veteran's commander initiated a Line of Duty (LOD) investigation into the facts and circumstances of the motor vehicle accidents, and the Veteran's related injuries. The LOD investigator determined that the Veteran's injuries were Not in the Line of Duty (NLOD) due to his driving under the influence of alcohol, with a documented BAC of .16. In March 2014, the Veteran's Commanding General issued a memorandum of reprimand due to his involvement in the MVA. After considering a rebuttal by the Veteran, the Commanding General directed that the reprimand be filed in his permanent military record. In November 2014, the Veteran pled guilty and was convicted of manslaughter and vehicular manslaughter and sentenced to 3.5 to 10 years of confinement. In December 2014, the Veteran's commander notified the Veteran that he was recommending that he be involuntarily released from active duty for commission of misconduct. The Veteran submitted a request for resignation in lieu of elimination from service. The Veteran's Commanding General approved the resignation. The Veteran was discharged with an under other than honorable discharge, effective January 11, 2015. The Veteran appealed the adverse findings of the Line of Duty investigation, which found that the Veteran's injuries were not incurred in the line of duty due to his misconduct. In May 2017, the Army Human Resources Command denied the appeal finding that the Veteran had not submitted substantial new evidence to warrant a different LOD determination. There has been no upgrade to the Veteran's discharge by the Army Discharge Review Board (ADRB) or Army Board of Corrections for Military Records (ABCMR). However, the Veteran has stated that he is pursuing an upgrade. Analysis Turning to an analysis of these facts, the Veteran's in-service offense involving vehicular manslaughter was felonious; therefore, the offense that the appellant committed involved moral turpitude. Therefore, the Board finds that the Veteran's discharge under conditions other than honorable is based on an offense involving moral turpitude under 38 C.F.R. § 3.12(d)(3). However, the evidence does not indicate that the Veteran committed a willful act which has no justification or legal excuse, gravely violates moral standards, and by definition causes harm or loss to a person; rather, the Board finds that the evidence is in equipoise as to whether the Veteran acted willfully, or whether the combination of the Veteran's PTSD and diagnosed insomnia contributed to the December 2013 motor vehicle accident. As such, having reviewed the complete record, the Board finds that the character of the Veteran's discharge is not a bar to the receipt of VA compensation benefits based on his period of service from September 7, 2013 to January 11, 2015, as discussed below. The Veteran's private treatment records indicate that he sought treatment in November 2013. During a clinical interview, the Veteran reported that he began having insomnia in September 2013, with symptoms of difficulty falling asleep, nocturnal awakenings twice or more frequently per night, and daily fatigue. He was provided with sleep hygiene recommendations, to include the use of melatonin. In an October 2021 correspondence, the Veteran indicated that his primary care physician informed him that his sleep disturbances, to include insomnia, could be related to PTSD. In this correspondence, the Veteran also noted that Beginning roughly on Thanksgiving, just a couple of weeks after my doctor's appointment and two weeks prior to the accident, my PTSD symptoms became indisputable and the cause crystal clear. I went from struggling to fall and stay asleep to getting essentially zero sleep for two weeks. This took an immediate toll on me and my reasoning skills, which only further intensified the PTSD... He also accounted that he was on temporary duty in Kansas and "blacked out" while driving his automobile. He stated that his commander became concerned and relieved him of driving duties (known in military parlance as "taking away driving privileges"). In an October 2021 statement, a fellow service-member noted that she was with the Veteran on the night of the accident, and he appeared "exhausted." She also stated that the Veteran had mentioned an "incident during his trip to Kansas where he had been relieved of his driving privileges as he had been suffering from insomnia." In an October 2021 letter, the Veteran's commander, during his 2013 deployment to Afghanistan, stated that "I truly believe that PTSD played a large part in what happened on December 7, 2013 (the date of the accident)." In an appeal to the Army Human Resources Command, the Veteran's representative asserted that the Veteran's "decision-making abilities were impaired to such an extent that the alleged misconduct could not be fairly characterized as "intentional" (and) the alleged misconduct was not the proximate cause of his motor vehicle accident." The Veteran's representative further argued that the Veteran's "stress-related insomnia would likely cause substantial degradation in decision-making and motor skills." In a February 2017 VA examination, the examiner diagnosed the Veteran as having PTSD. The examiner noted symptoms that included problems with concentration, sleep disturbances, and difficulty adapting to stressful situations. The examiner also noted that the Veteran "does experience disruptive sleep pattern. Even with medication, he takes an hour to fall asleep and then awakens frequently during the night. He may get five hours of sleep a night." Based on the evidence noted above, the Board finds that the evidence is in equipoise as to whether the Veteran's actions were willful, and therefore, were the proximate cause of the MVA and resulting discharge. The law is clear that, if intoxication results proximately and immediately in disability or death, the disability or death will be considered to be the result of the person's own willful misconduct. See 38 C.F.R. § 3.301(c)(2); Gabrielson v. Brown, 7 Vet. App. 36, 41 (1994). Proximate cause is "that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred." Forshey v. West, 12 Vet. App. 71, 73-74 (1998) (quoting Black's Law Dictionary 1225 (6th ed.1990)), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002); Thomas v. Nicholson, 21 Vet. App. 418 (2006) (discussing the Board's treatment of proximate causation), aff'd, 227 F. App. 895 (Fed. Cir. 2007). "Proximate cause" is also defined as "[a] cause that directly produces an event and without which the event would not have occurred." Donnellan v. Shinseki, 24 Vet. App. 167, 173 (2010). In other words, "the proximate cause of an event is that act or omission which, in natural and continuing sequence, unbroken by an efficient intervening cause, produces the event, and without which that event would not have occurred." MicroStrategy Inc. v. Bus. Objects, S.A., 429 F.3d 1344, 1361 (Fed. Cir. 2005). Here, the evidence indicates that the Veteran's insomnia, fatigue, and work schedule with a late team meeting, which resulted in impaired thinking and judgment were a contributing cause and/or an intervening cause of the in-service motor vehicle accident. Thus, the Veteran's operating a vehicle several hours after the consumption of alcohol has not been shown to be the proximate cause of the accident, and subsequent discharge, as these actions did not result in a natural and continuing sequence, unbroken by an efficient intervening cause, that produced the accident, and without which the accident would not have occurred. See MicroStrategy Inc., 429 F.3d at 1361; Donnellan, 24 Vet. App. at 173. Accordingly, the Board finds that the evidence is in equipoise as to whether the Veteran's motor vehicle accident was the result of the Veteran's PTSD and insomnia. The Veteran had been having sleep difficulties, to include insomnia, which resulted in significant fatigue, tiredness, and contributed to his December 2013 motor vehicle accident. As such, the Board finds that he did not willfully engage in the misconduct which led to his adverse discharge. Consequently, his discharge does not constitute a bar to VA compensation benefits. 38 C.F.R. § 3.12(d)(4). The benefit sought on appeal is granted. 2. Entitlement to an increased rating, in excess of 50 percent disabling, for posttraumatic stress disorder (PTSD). The Veteran seeks an increased rating for his PTSD. Specifically, the Veteran has noted that he believes that he deserves a rating of 70 percent or higher for his PTSD, based on the severity of his PTSD symptoms. 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). The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula)), which provides that a 50 percent rating is warranted when the evidence shows 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 and maintaining effective work and social relationships. A 70 percent rating is warranted when the evidence shows 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 worklike setting); and inability to establish and maintain effective relationships. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that 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). When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent. After a review of the evidence of record, the Board finds that the Veteran's PTSD has been productive of symptoms such as depressed mood, anxiety, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control, such as unprovoked irritability with periods of violence, inability to establish and maintain effective relationships, suicidal ideation, persistent danger of hurting self or others, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. See VA treatment records, February 2017 and December 2021 VA examinations and the transcript of the October 2021 Board hearing. Considering the frequency, severity, and duration of the Veteran's impairment to assess his disability picture, the Board finds that the evidence shows that the Veteran's PTSD has appropriated the criteria for a 70 percent rating for the entire appeal period. In addition, the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). Notably, post-service treatment records also include reports wherein the Veteran denies suicidal ideation, without a specific plan, but thinks about it frequently, which the Board finds supports a finding of passive suicidal ideation. See December 2021 VA examination and VA treatment records; see also Bankhead, 29 Vet. App. at 18 (indicating the continuum of suicidal ideation includes thoughts of wishing one would go to sleep and not wake up). Resolving all reasonable doubt in the Veteran's favor, the Board finds that the preponderance of the evidence supports an initial 70 percent rating for the Veteran's PTSD throughout the appeal period. A further initial increased rating of 100 percent is discussed in the Remand section below. REASONS FOR REMAND 1. Entitlement to an increased rating, in excess of 70 percent disabling, for posttraumatic stress disorder (PTSD) is remanded. The Board finds that additional evidentiary development is needed before the Board can render a decision on the Veteran's claim for an initial rating in excess of 70 percent for PTSD. The Board finds the Veteran's February 2017 and December 2021 VA psychiatric examinations are inadequate to make an informed decision regarding his appeal of the rating in excess of 70 percent for PTSD. First, the examination reports are not consistent with the evidence of record. Both examinations note that the Veteran has never been diagnosed as having a TBI. However, the Veteran's STRs and VA treatment records indicate that the Veteran has been diagnosed with a TBI since his MVA in December 2013. The Board is simply unable to reconcile the VA examiners' reports of a lack of history of TBI with the other evidence of record. Second, the examiners did not provide opinions indicating any potential neurocognitive or psychological residuals of the mild TBI would be clinically indistinguishable from the Veteran's currently expressed PTSD symptomatology. Thus, a new examination is also necessary to assess whether the Veteran has increased psychological impairment, and if the impairment is attributable to the Veteran's PTSD or TBI. As such, on remand, a medical opinion should be obtained to determine the current severity of the Veteran's PTSD, any additional diagnoses the Veteran may have, to include insomnia, TBI, and any cognitive disorders, and whether they are proximately due to his service-connected PTSD. Morgan; Bailey; Long. Additionally, a medical opinion should be obtained to differentiate the symptomology of the Veteran's service-connected PTSD, and his diagnosed TBI. 2. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues above could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. The matters are REMANDED for the following action: Afford the Veteran a VA psychiatric examination to determine the current severity of his PTSD. The claims file must be made available to and reviewed by the examiner. The examiner must provide a full description of the Veteran's psychiatric disability. A diagnosis of TBI must be ruled in or excluded. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.