Citation Nr: 21074171 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-25 785 DATE: December 14, 2021 ORDER Entitlement to an initial 50 percent rating for PTSD from June 30, 2016 to August 26, 2021 is granted. Entitlement to a rating in excess of 50 percent for PTSD for the period from August 27, 2021 is denied. REMANDED Entitlement to a total disability rating due to individual unemployability is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's PTSD has manifested in difficulty establishing and maintaining effective work and social relationships and significant disturbances of motivation and mood resulting in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to a 50 percent rating for PTSD from June 30, 2016 to August 26, 2021 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. The criteria for entitlement to a rating in excess of 50 percent for PTSD for the period from August 27, 2021 have not 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 active duty in the United States Army from November 1966 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal of an April 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In May 2021, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's May 2021 remand directed the RO to obtain outstanding VA treatment records from November 2016 to the present, and pertinent records were associated with the file. The Board's remand also instructed the RO to obtain an opinion determining the severity of his PTSD condition, which was provided in August 2021. As such, substantial compliance has been achieved. Id. at 271. Increased Ratings 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). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). 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. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. 1. Entitlement to an initial rating in excess of 30 percent for PTSD from June 30, 2016 to August 26, 2021; and, 2. Entitlement to a rating in excess of 50 percent for PTSD from August 27, 2021 The Veteran contends that his service-connected PTSD symptoms warrant a higher rating. In April 2018, the Veteran was awarded service connection for PTSD and an initial 30 percent rating was granted, effective June 30, 2016. The Veteran appealed the initial rating. Following a May 2021 Board remand, the Veteran was provided a VA examination and subsequently granted an increased rating of 50 percent, effective August 27, 2021. The issues in this appeal are (1) whether the Veteran's associated symptoms of PTSD warrant an initial rating in excess of 30 percent from June 30, 2016, and (2) whether the current severity of his symptoms cause the level of impairment required for a disability rating in excess of 50 percent from August 27, 2021. The Veteran's medical record consists of VA psychiatric examinations in February 2018, May 2019, and August 2021, as well as 2017 mental health treatment with a private provider. Upon review of the cumulative evidence, the Board finds the Veteran's PTSD symptoms most closely approximate the level contemplated by a rating of 50 percent during the entire period on appeal and have remained relatively stable. The Veteran's initial rating of 30 percent was based on the findings of a February 2018 VA examination. The examiner opined the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks. However, the Board finds the Veteran's PTSD resulted in more than occasional and intermittent disruptions in personal, social, and occupational functioning during this period. February 2017 private treatment records from licensed clinical social worker, ES, show functional impairment in social, occupational, and home settings equivalent to the severity anticipated by a 50 percent rating. ES notes the Veteran's significant severity of PTSD and severe depressive symptoms make it very difficult for him to maintain relationships or to find connection with others. She indicated he has been married three times, the last resulting in court-ordered anger management classes and domestic violence charges. The marriage ended in divorce and he has lived alone since 2011. The Veteran reported that he feels uncomfortable around people and has very little patience due to his hypervigilance and suspiciousness. He is shown to experience chronic sleep disturbance with two to three hours of sleep accompanied by night sweats and nightmares, which he believes adds to his irritability. ES noted the Veteran to have continuously depressed mood, as a daily occurrence, indicating significant symptoms of disturbances of motivation and mood contemplated by a 50 percent rating. The Veteran's symptoms at his February 2018 and May 2019 examinations show tense or agitated psychomotor, anxious and depressed mood, and memory, concentration, and attention disturbance. Notably, suicidal ideation without plan or intent was not marked as present in February 2018, but the narrative says it was present. Suicidal ideation was denied in May 2019. The Veteran reported he recently reconnected with two friends from high school that he talks to about his experiences in Vietnam; however, in August 2021, he reported he does not have close friends. While he reports a steady relationship with his son, he does not have contact with his daughter. The May 2019 examination indicates the Veteran experienced difficulty concentrating, loss of interest, social isolation, and an inability to control urges or impaired judgment. Similarly, August 2021 findings show memory loss, anxious and depressed mood, and tense psychomotor. Based on the above, the Veteran's symptoms remain substantially the same in presentation and severity. While the Veteran was not diagnosed with PTSD until February 2017, the earliest manifestations in the record appear from 2008 to 2012. The record shows a history of DUI convictions and alcohol use disorder with outpatient treatment from 2008 to 2010, indicating a behavioral pattern and a continued high level of severity since the filing of his claim. The February 2018 examiner differentiated the Veteran's social isolation as attributable to his severe alcohol use disorder. Similarly, the May 2019 examiner opined the Veteran's severe alcohol use disorder continued to serve as the primary barrier to his social functioning limitations. However, the August 2021 VA examiner indicated the Veteran did not meet the criteria for the diagnosis of alcohol use disorder. Rather, the disorder and associated symptoms are subsumed in his PTSD diagnosis. The examiner indicated the Veteran continues to experience isolative behaviors, is irritated easily, and has difficulty being around people. As such, the Veteran's social functioning is significantly limited by his depressive symptoms and alcohol use behavior that result of his PTSD. The Veteran reports an increase in his symptoms since his retirement in 2013, indicating the continued severity of PTSD symptoms at the time he initiated his claim. The evidence also supports a finding the Veteran experienced significant occupational impairment due to his PTSD symptoms. The Veteran is shown to have held several jobs, in a variety of fields, for short durations. The evidence shows a long history of work disruptions due to an inability to get along with supervisors and interact with people due to his distrust and low tolerance for differences. The Veteran reported he last worked in 2013 when he left his employment because the company was sold and he did not like the new management team. He previously left or was forced out of three or more positions for similar reasons. The February 2018 examiner concluded the Veteran's symptoms impaired his ability to interact with the public, coworkers, and supervisors, and further limits his ability to adapt to changes in the workplace and to accept or respond appropriately to criticism, which is akin to symptoms anticipated by a 70 percent rating. Although an increased rating of 50 percent is warranted from June 30, 2016, the evidence of record does not reflect a frequency of symptoms approximating the level of occupational and social impairment warranting a 70 percent disability rating. The August 2021 examiner noted circumstantial or circumlocutory speech with frequently tangential and circumstantial thought processes. The Veteran was found to have fair insight and judgment and mild memory loss, with continued difficulty in establishing and maintaining effective work and social relationships. He reported no close friendships due to a mistrust of people, and the examiner concluded this results in an inability to establish and maintain effective relationships. While the Veteran experiences occasional symptoms contemplated by a 70 percent rating, such as a singular notation of suicidal ideation, impaired judgement, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships, the evidence does not support that these symptoms are of similar frequency or severity such as is contemplated by the higher rating. The evidence does not show obsessive rituals that interfere with routine activities, hallucinations, grossly inappropriate behavior, illogical or obscure speech, near-continuous panic attacks, spatial or time and place disorientation, gross impairment of thought processes, neglect of appearance and hygiene, or other symptoms on par with the level of severity contemplated by these symtoms. He was consistently found to have adequate hygiene and grooming, good eye contact, and with unimpaired perceptions. At times, his psychomotor was noted as relaxed, affect and mood were appropriate and euthymic, and insight and judgment were fair. As such, the frequency and severity of his symptoms do not demonstrate the level of impairment associated with a 70 percent rating or higher. The Board notes that the Veteran expressed suicidal ideation, which is contemplated by the 70 percent criteria and is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). While he is noted to have a history of suicidal ideation with the specific intent to use a weapon in the 1980s and in 2006, such ideationa has been noted on only one occasion during the appeal period, and the Veteran has otherwise consistently denied symptoms of suicidal ideation. The evidence shows he does not pose a threat to himself or others; however, the Veteran does endorse passive thoughts that he is "better off dead." This evidence tends to support the severity of his depressive symptom of disturbances of motivation and mood as contemplated by a 50 percent rating. As such, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 70 percent or 100 percent disability ratings. Based on the above evidence, the Board finds that the severity, frequency, and duration of the Veteran's symptoms since August 27, 2021 have not resulted in the level of impairment required for a rating in excess of 50 percent. Rather, the criteria for a 50 percent disability evaluation have been met for the entire appeal period, June 30, 2016 to the present. REASONS FOR REMAND 1. Entitlement to a total disability rating due to individual unemployability is remanded. Remand is required for referral of the claim for a TDIU to the Director of Compensation Service, for extraschedular consideration. The Veteran has the following disabilities that are service-connected PTSD rated 50 percent, from June 30, 2016; tinnitus rated 10 percent from June 30, 2016; and bilateral hearing loss noncompensable from June 30, 2016 until February 13, 3018 and 10 percent disabling thereafter. Thus, his combined rating throughout the appeal is 60 percent. Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16 (a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director of Compensation Service when there is a reasonable possibility that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Veteran has indicated at several VA examinations that he could no longer work due to symptomatology associated with service-connected PTSD. See also VA 21-8940, 4/17/2019. The Veteran's February 2018, May 2019, and August 2021 VA examiners have noted an occupational impact due to his PTSD and alcohol use symptoms. The evidence shows a history of difficulty getting along with supervisors and co-workers, an inability to adapt to changes or stressful circumstances, and frequent position and field changes. As such, the Board finds there is plausible evidence that the Veteran's service-connected disabilities made him unemployable. Therefore, remand is required for referral of the claim for a TDIU to the Director of Compensation Service for extraschedular consideration. Accordingly, the matters are REMANDED for the following action: 1. Refer the issue of entitlement to extraschedular TDIU to the VA Director of Compensation and Pension Service for adjudication under 38 C.F.R. § 4.16 (b). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tabitha Chapman, 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.