Citation Nr: 21075458 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-49 015 DATE: December 20, 2021 ORDER From May 27, 2008 to August 26, 2021, an increased initial 70 percent rating for the Veteran's posttraumatic stress disorder (PTSD) is granted. Beginning August 26, 2021, entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities is remanded. FINDING OF FACT For the entire appeal period, the Veteran's PTSD has been manifested by hypervigilance, daily panic attacks, chronic sleep impairment, near-continuous depression, social isolation, impairment of short-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective relationships. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a disability rating of 70 percent 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 Codes (DCs) 9434-9411. 2. The criteria for a disability rating higher than 70 percent for PTSD from August 26, 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 (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active military service from January 1989 to June 1989 and from November 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the Veteran's initial claim for entitlement to service connection for PTSD from military sexual trauma was received by VA in May 2009. In an October 2009 rating decision, service connection was denied for PTSD. The Veteran timely filed a notice of disagreement (NOD) in October 2009. No statement of the case (SOC) was issued in response to the NOD. The RO, in a June 2013 rating decision, granted service connection for PTSD with a 30 percent evaluation effective May 27, 2008, the date of claim to reopen the issue of service connection for a mental disorder. The Veteran timely perfected her appeal. Based on the foregoing development, the Board finds that the Veteran's PTSD appeal stems from the October 2009 rating decision. The Veteran testified before the undersigned Veterans Law Judge during a July 2021 Board hearing. A copy of the transcript has been associated with the file. This matter was previously before the Board in August 2021, at which time it was remanded for additional development, to include a new VA examination. The claim has now returned to the Board for further appellate review. During the pendency of the appeal, a September 2021 rating decision increased the Veteran's disability rating for her PTSD to 70 percent, effective August 26, 2021. As the increased rating was not granted for the entire claims period, it was considered a partial grant and bifurcated the claim. See AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to TDIU has been raised by the record and has been added to the appeal as part and parcel to the Veteran's claim for a higher rating for her psychiatric disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Psychiatric disorders, however diagnosed, are rated under the General Rating Formula for Mental Disorders, and the criteria under this formula shall be considered no matter which diagnostic code is assigned. Under Diagnostic Code 9411, a 30 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted under DC 9411 for PTSD when there is 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, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned under DC 9411 for PTSD manifested by 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), or an inability to establish and maintain effective relationships. Id. The maximum rating available of 100 percent is assigned under DC 9411 for PTSD manifested by 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, and memory loss for names of close relatives, own occupation, or own name. Id. Under the General Formula for Mental Disorders, 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 symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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). Suicidal ideation is a symptom contemplated by the VA's 70 percent rating criteria. Bankhead, 29 Vet. App. at 19. The United States Court of Veterans Claims (Court) has held that when assigning a disability evaluation, it is the totality of the relevant evidence and lay evidence, not just one piece of evidence that must be considered. Id. However, the Court also held 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 with deficiencies in most areas." Put differently, although suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, it does not follow that suicidal ideation automatically warrants a 70 percent disability rating. The focus is on whether those suicidal ideations are of the severity and frequency to cause occupational and social impairment with deficiencies in most areas. 1. Entitlement to a rating higher than 30 percent prior to August 26, 2021, and higher than 70 percent thereafter for PTSD. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran currently has staged ratings: 30 percent effective May 27, 2008 (under DCs 9434-9411); and 70 percent effective August 26, 2021 (under DC 9411). Each relevant period will be addressed in turn. Turning to the evidence of record, an assessment of psychological symptoms and functioning was conducted via clinical interview in October 2008. The Veteran reported that "something is wrong with me, I'm not sure what is wrong." Regarding her social functioning, she noted she stays home all day, every day, with the exception of daily transportation of her daughter to school, going to church on Sunday, and going for groceries once a week. She reported crying on a daily basis. Outside of her daughter, she indicated she only talks to her grandmother. Regarding employment, she reported she worked at Wendy's for the past 8 years, but quit in January 2008 due to ongoing severe pain in her left arm that prevented her from continuing to work. She self-reported feelings of impatience, irritation, worthlessness, fatigue, and poor concentration. She stated she has had suicidal thoughts approximately twice per year since service, but denied ever having intent or plan. No past suicide attempts were noted. She reported her last suicidal thought was two weeks prior to the evaluation. A December 2008 mental health treatment note reported the Veteran had suicidal thoughts after a burglary incident in her home but denied a plan or past attempts. She noted she would not commit suicide because there would be nobody to take care of her daughter. A January 2009 mental health note reported the Veteran was afraid because somebody was "after her." She noted she felt this way due to her nightmares. In an attempt to feel safe, she locked her bedroom door, propped a chair under the door, kept a knife in the room, and a hammer under her pillow. No suicidal or homicidal ideations were noted. A May 2009 mental health outpatient note reported no suicidal or homicidal ideations. A June 2009 mental health outpatient note reported the Veteran was seeking help for her concerns with social isolation and excessive precautions to ensure safety. Upon mental status examination, her mood was described as depressed. No suicidal or homicidal ideations were noted. A diagnosis of PTSD was indicated. In the Veteran's Notice of Disagreement submitted in October 2009, she stated "I'm always depressed and scared. I have nightmares, and wake up in a cold sweat." She reported she doesn't socialize with the public or friends and is forgetful of things such as the date, month, and days of the week. A treatment record from August 2010 reported that although the Veteran did not want to leave the house very often, she was increasing her church involvement. The Veteran also noted mingling with people after church the past Sunday, instead of immediately going home. The Veteran reported to continue to experience "anxiety attacks" at home and sometimes in crowds, such as in Walmart. During these attacks she has difficulty breathing and perspires. The examiner noted the Veteran seemed to be expanding her comfort zone to include both home and church and was feeling a desire to interact more with others. The Veteran was provided a VA examination in March 2011. She was diagnosed with PTSD. The Veteran noted prior to entering the service she was a "people person" and "loved people," and reported playing basketball, softball, and was on the track team. During the military, she reported she was molested, and after the attack, did not feel safe from that point on, from anyone. The Veteran reported she has no friends and does not trust people. She spends her days in her house, with the doors and windows locked. She only left to transport her child to school, to attend medical appointments, or to grocery shop in the early morning. She reported hypervigilance, and noted she slept with a hammer under her pillow and an ironing board behind her door at night. She reported she avoids talking about her sexual experiences in the military and avoids men, intimate relationships, and people in general. Upon mental health examination, she was described as neatly groomed, and appropriately dressed. She was cooperative and attentive. Her mood was described as fearful, and she noted "I am always scared, scared someone is going to shoot me. I don't have no reason to feel that, but I am just scared." No suicidal thoughts were noted. A mental health note from September 2011 reported the Veteran continued to go to church and rely on her church family. She self-reported chronic pain, issues with sleep, and boredom. Upon mental status examination, she was described as alert, oriented, and with memory intact. Her appearance was neat and clean. No suicidal or homicidal ideations were noted. An April 2012 psychiatry note reported the Veteran was still using cocaine. She noted feelings of social isolation and reported not working in the past 4 years because of shoulder pain. She reported that she babysits her 3-year-old nephew daily and was hoping to start school at the local vocational tech school. She described her 9-year-old daughter as "my heart, my best friend." She noted having no friends, and tried to attend church, but it was too overwhelming with too many people. Upon mental status examination, she was described as cooperative, with speech within normal limits. No suicidal or homicidal ideations were noted. Memory was intact. A Suicide Risk Assessment was completed in June 2013. Risk factors included a history of substance use disorder and increased anger/irritability/resentment. The Veteran's risk assessment was listed as low. The June 2013 rating decision in which the RO granted service connection for PTSD and assigned a 30 percent disability rating, did so based upon symptomatology that included anxiety, chronic sleep impairment. Although no longer widely used, her Global Assessment of Function (GAF) score was 50. A range of 41-50 indicates serious symptoms; or any serious impairment in social, occupational, or school functioning. A May 2014 mental health note reported the Veteran wanted to learn to trust more. She noted a pattern of anxiety, including isolation and an inability to trust. A March 2015 psychiatric follow up note reported the Veteran had not filled her prescriptions of Sertraline or Amitriptyline since May 2014; therefore, those medications were stopped. Zolpidem 5 mg was added for insomnia. During a May 2015 psychiatric follow up evaluation, the Veteran self-reported her mood was down lately, with irritability being an issue. No suicidal or homicidal ideations were noted. The Veteran was provided a VA examination in July 2017. The examiner noted the Veteran was diagnosed with PTSD and depression during a 2011 VA examination, and continued to meet the criteria for PTSD according to DSM 5 criteria. The examiner determined that the Veteran suffered from occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported she was single and lives with her daughter. She described her relationship with her daughter as "lovely." She denied any close friends, but speaks to her 94-year-old grandmother on a daily basis and has a close relationship with her. She reported no hobbies, but regularly attended church and sings in the choir. She noted "no life outside" of church. The Veteran reported not currently participating in any mental health treatment and had stopped taking her psychotropic medications because she did not like being on medication. She noted difficulty experiencing positive emotions, and stated she is "just here." Verbal outbursts were reported, especially when she has painful flare-ups. Excessive watchfulness and checking locks frequently were noted. The Veteran exhibited symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The Veteran was administered the Beck Depression Inventory II and scored a 31, indicative of significant depression. The examiner noted that symptoms endorsed per the Veteran's description are likely better accounted for by PTSD (i.e., fatigue and insomnia). No suicidal or homicidal ideations were noted. In the Veteran's VA Form 9 submitted in August 2017, she noted panic attacks almost daily, memory loss, and mood swings. She indicated she hardly ever leaves her house, unless it has something to do with her child, as she does not like to be around a lot of people. She noted severe road rage and issues with sleeping. She stated, "I haven't slept all night for years." She noted minimal appetite. During her July 2021 virtual Board hearing, the Veteran reported she cries a lot and feels like she is "just existing. I'm not living." Hearing Transcript, Page 3. Like VA examination reports, medical treatment records sometimes only capture a picture at a particular moment in time. It may not be reflective of how a veteran felt the day before or would be a guesstimate of how she was going to feel the day after. It is for this reason that the totality of the evidence in any appeal must be reviewed and considered. When one views the evidentiary picture presented prior to August 26, 2021, the Board finds an initial 70 percent rating for PTSD is warranted. The Veteran exhibited symptoms specifically contemplated by the 70 percent rating criteria, to include near continuous panic or depression affecting the ability to function appropriately, suicidal ideation, impaired impulse control (such as unprovoked irritability), difficulty in adapting to stressful circumstances (including work or a work-like setting), and an inability to establish and maintain effective relationships. These symptoms have been noted throughout the appeal period, to include VA treatment reports. These symptoms, in conjunction with the Veteran's other unlisted symptoms such as suspiciousness, social isolation, hypervigilance, nightmares, and daily panic attacks have had a significant impact on her occupational and social functioning. The Board finds the Veteran's PTSD impairment approximates occupational and social impairment with deficiencies in most areas, as assessed by the August 2021 VA examiner, throughout the relevant period on appeal. The Board acknowledges other examiners have assessed a lower level of occupational and social impairment, but the primary focus is the Veteran's symptoms, which have remained consistent throughout the appeal period. These symptoms, when combined with the most recent August 2021 VA examiner's assessment, warrant the assignment of a 70 percent rating for PTSD throughout the appeal period, when reasonable doubt is resolved in the Veteran's favor. Many of the VA rating criteria used for the August 26, 2021 increase was also evident during the period prior to August 2021. For example, records show depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, impairment of short- and long-term memory, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and suicidal ideation throughout the period on appeal. With regard to social impairment, the evidence shows that the Veteran is currently single. Although she reported having a relationship with her daughter and grandmother, she has continually indicated she has no friends. Moreover, the evidence indicates that the Veteran does not socialize with others in person, rarely goes out in public, and isolates herself. However, she was able to maintain some social interaction, including attending church and singing in the choir. With regard to occupational impairment, the record notes the Veteran last worked at Wendy's in 2008. During her March 2011 VA examination, she reported she left her last employment at Wendy's due to mental disorder effects, including being afraid around people and being fearful that someone would "come thru the door, to get me...plus my arms hurt." Although the Board finds that doubt should be resolved in the Veteran's favor in regards to her being assigned a 70 percent rating for the time period prior to August 26, 2021, the Board finds that at no point have the Veteran's symptoms of PTSD manifested to such a degree that more nearly approximates the criteria for a 100 percent disability rating. Although the service-connected psychiatric symptoms were clearly significantly disabling, the record does not establish that the service-connected PTSD was productive of total occupational and social impairment warranting assigment of a 100 percent schedular rating. The record does not show total occupational and social impairment due to symptoms such 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; memory loss for names of close relatives, own occupation, or own name. Throughout the appeal period, the Veteran's thought processes and content have been found unremarkable, or without impairment or delusions. Treatment records showed no perceptual disturbance such as delusions or hallucinations, mania, or psychosis. The Veteran's behavior has never been noted to be grossly inappropriate, rather the Veteran has been noted to be cooperative and interactive. There is no evidence that the Veteran is a persistent danger to herself or others. Rather she has maintained relationships with her daughter and grandmother, whom she talks to daily. Furthermore, the record does not reflect that the Veteran is unable to perform activities of daily living (including maintenance of minimal personal hygiene). Rather the Veteran has been routinely found to be appropriately groomed and dressed, and fully alert and oriented. Finally, although it has been noted that the Veteran has had some mild to moderate memory loss, there is no indication that she suffered memory loss for names of close relatives, own occupation, or name. Therefore, the Veteran is not entitled to a 100 percent rating under the General Rating Formula for the period prior to August 26, 2021. Based on the foregoing, and in the interest of providing the Veteran the full benefit of the doubt, the Board finds that an earlier effective date for the award of a 70 percent rating for PTSD is warranted, with an effective date of May 27, 2008. 2. Entitlement to a rating higher than 70 percent after August 26, 2021 As previously noted, the RO in a September 2021 rating decision granted an increase for the Veteran's PTSD from 30 percent to 70 percent disabling, pursuant to an August 26, 2021 examination. The August 2021 VA examiner noted a diagnosis of PTSD due to military sexual trauma and mild stimulant use disorder (cocaine) that results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran noted she has been single throughout her life and does not currently have a partner. She has a 20-year-old daughter, but no friends and limited contact with her siblings. She noted she has had thoughts of burning the house down, from which she said she is soon to be evicted. For VA rating purposes, her symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, impairment of short- and long-term memory, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and suicidal ideation. Upon mental status examination, she was described as neatly attired and cooperative. Her thought processes appeared well organized, and judgment was within normal range. She acknowledged suicidal thoughts but denied intent. The Board finds that for the period after August 26, 2021, a rating in excess of 70 percent is not warranted. The next-higher and maximum schedular rating of 100 percent is not warranted as the record does not show total occupational and total social impairment due to symptoms such 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. Even though treatment records demonstrate that the Veteran experienced occupational and social impairment, the Board notes the 100 percent rating requires total occupational and total social impairment. At no point did VA examiners or other treating physicians find that the Veteran's PTSD caused total occupational and social impairment. Based on the foregoing, a rating higher than 70 percent for the Veteran's service-connected PTSD after August 26, 2021 is not warranted. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Board notes that the first time the issue of unemployability was raised was during the process of appealing the initial rating assigned for the Veteran's PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (holding that entitlement to a TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran). Pursuant to this decision, the Board assigned a 70 percent rating for her PTSD effective for the whole appeal period, thus satisfying the schedular percentage requirements for TDIU during the entire time period on appeal. In this case, the Board finds the issue of entitlement to a TDIU is raised by the record, as part and parcel of the higher rating claim on appeal and is thus properly before the Board. The Veteran has not yet completed a formal application for TDIU, a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) for the period on appeal, and details regarding her employment during the appeal period are unclear. On remand, she should be asked to complete the appropriate application for a TDIU and provide relevant employment details. The AOJ should then adjudicate this matter in the first instance to avoid any prejudice to the Veteran. The matter is remanded for the following action: 1. Send the Veteran the proper notice that advises her about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, as it contains a multitude of information helpful to VA in deciding her claim. 2. Complete any development required on the claim and adjudicate the matter of entitlement to a TDIU. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.