Citation Nr: 21076611 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-34 740 DATE: December 27, 2021 ORDER Entitlement to a 70 percent rating prior to November 12, 2014 for post-traumatic stress disorder (PTSD) with depressive disorder is granted. Entitlement to a rating in excess of 70 percent for PTSD with depressive disorder is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to November 12, 2014, the evidence is in equipoise as to whether the Veteran's PTSD with depressive disorder caused occupational and social impairment with deficiencies in most areas. 2. The Veteran's psychiatric disorder did not cause total social and occupational impairment at any time during the appeal period. 3. The Veteran's service connected disabilities precluded the Veteran from securing and following substantial gainful employment. CONCLUSIONS OF LAW 1. For the period prior to November 12, 2014, reasonable doubt is resolved in favor of the Veteran; thus, the criteria for a 70 percent rating, but no higher, for PTSD with depressive disorder, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. For the entire appeal period, the criteria for a rating in excess of 70 percent, for PTSD with depressive disorder, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 2004 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran had a hearing before a Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. The Board notes, however, that the judge that conducted the Veteran's hearing is not available to participate in the Veteran's case. As such, the Veteran was given an opportunity to have another hearing with a different Veterans Law Judge; however, in April 2021 written correspondence, the Veteran waived his right to a second hearing. In April 2019, the Board granted the Veteran an earlier effective date of July 10, 2011 for his assigned 50 percent rating for PTSD, and an increased rating to 70 percent beginning November 12, 2014. However, the Board denied a rating greater than 50 percent prior to November 12, 2014, and a rating greater than 70 percent thereafter. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims and the parties entered into a Joint Motion for Partial Remand (JMPR) in March 2020 whereby the parties agreed that the Board's decision would be partially vacated. Specifically, the parties agreed to vacate that portion of the decision that denied a rating in excess of 50 percent prior to November 12, 2014, and in excess of 70 percent thereafter. In July 2021, the Board remanded the claims for further development. Thus, the matters have been returned to the Board for further appellate review. Increased Rating 1. Entitlement to a rating in excess of 50 percent prior to November 12, 2014, for PTSD with depressive disorder, not otherwise specified (NOS), and alcohol dependence, in full remission. 2. Entitlement to a rating in excess of 70 percent from November 12, 2014 for PTSD with depressive disorder, not otherwise specified (NOS), and alcohol dependence, in full remission. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran's PTSD has been assigned 50 percent and 70 percent ratings under Diagnostic Code 9411. Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a 50 percent rating is assigned when a veteran's PTSD causes 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-term 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The maximum schedular rating of 100 percent is warranted when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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). Merits A review of the evidence shows the Veteran received a PTSD examination in July 2011 where he was diagnosed with PTSD. In the examination, the Veteran reported that he is single, but he cohabitates with his girlfriend and her four year old daughter of 1.5 years. He reported that most of his social life revolves around his girlfriend and her daughter, but he has one friend that he talks to and will sometimes talk to his father and paternal grandparents. The Veteran reported that he normally enjoys riding his motorcycle, but he has enjoyed it less lately. He also stated that his work schedule interferes with his leisure time, and he denied having any hobbies or interests as he reported that he mostly works and sleeps. Occupationally, the Veteran reported being employed as a hose former with Cooper Standard Automotive. He indicated he called in several times for illness or not feeling like going in because he lost sleep or felt like he couldn't face the day. Mental status examination showed the Veteran's appearance was clean; he was casually dressed, with a cooperative attitude, and orientation was intact. Affect was blunted and his mood was depressed. Thought process and thought content were unremarkable, and there were no delusions. The Veteran reported insomnia and fatigue. He further reported that he does not remember his dreams, so he is uncertain of whether he has nightmares. He denied having a current drinking problem but reported that he had a significant problem in the past. He further denied hallucinations, obsessive ritualistic behavior, panic attacks, and homicidal ideation. However, he reported passive suicidal thoughts that revolved around "looking forward" to when he dies, but he denied intent or plans to harm himself and did not report any past attempts. There was good impulse control and no episodes of violence. The examiner found that the Veteran has several symptoms of depression, worthlessness, and low motivation; and that tests indicate moderate depression and mild PTSD symptoms. In his March 2012 PTSD examination, the Veteran was diagnosed with PTSD and depression, which was found to be secondary to the Veteran's reported back pain, life changes, and PTSD. In the examination, the Veteran reported that he is still dating his current girlfriend, and he avoids interaction with other members because of feeling bad which he clarified as depressed and irritable. He also reported that his back pain interferes with his ability to be more involved in leisure activities. Occupationally, the Veteran reported that he lost his job in September 2011 due to missing too many days primarily due to back pain, and heat exhaustion due to the factory being hot. He also reported poor sleep and a depressed mood due to back pain and the loss of functional ability. With regard to mental health treatment, the Veteran reported that he was attending anger groups, but indicated that distance became a barrier after he moved. He further reported being prescribed medication from his psychiatrist which he took for one month. The examiner noted symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The examiner also noted that the Veteran reported typically feeling in a bad mood which was described as depression followed by irritability. He reported hypervigilance when out in public and thoughts about events in Iraq several times per day. The Veteran expressed feelings of guilt, withdrawal, avoidance, and poor sleep. The examiner found that the Veteran's symptoms cause occupational and social impairment with occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks. In his July 2013 PTSD examination, the Veteran was diagnosed with PTSD and depressive disorder. He reported that he had never been married and he has no children. He stated that he lives alone in his mobile home and he is no longer in a relationship as his girlfriend left. The Veteran reported that he talks to his father, grandmother, and aunt; and, while he has friends, he does not talk to them often. He spends his days visiting with his grandmother and "piddles" around the house. Occupationally, the Veteran reported that he last worked in 2011 as a hose former but he was fired due to missing too many days of work due to his back bothering him. Concerning mental health treatment, the examiner noted that the Veteran has been seen minimally by mental health and that he does not like taking medications. Further, he has not been active in treatment due to the long drive to get to the VA. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner further found that the Veteran's symptoms cause occupational and social impairment with reduced reliability and productivity. Analysis In considering the evidence, the Board initially notes that the Veteran has been assigned staged ratings, to include a 50 percent rating prior to November 12, 2014, and a 70 percent rating thereafter. However, after reviewing the evidence of record, the Board finds that a 70 percent rating, but no higher, is warranted for the entire appeal period. A higher rating is not warranted as the Veteran did not exhibit total social and occupational impairment. In support of the Board's conclusion, the Board notes that for the period prior to November 12, 2014, the Veteran's VA examinations show that his psychiatric disorder caused no more than occupational and social impairment with reduced reliability which corresponds to a 50 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Specifically, in his July 2011 VA examination, the examiner found that tests indicated the Veteran had moderate depression and mild PTSD symptoms. Additionally, in his July 2013 PTSD examination, the examiner found that the Veteran's mental health continues to be in the moderate range due to his disturbances in motivation and mood and reduced reliability and productivity. Consistent with the Veteran's VA examinations are his VA treatment records which also suggest that the Veteran's PTSD and depression caused no more than moderate impairment. For example, in his April 2011 new patient exam, it was noted that the Veteran was negative for moodiness, depression or anxiety, and suicidal/homicidal ideation. Additionally, in his May 2011 initial mental health assessment, screening tests based on the Veteran's self-reported symptoms showed moderate depression, moderate sleep impairment, and mild to moderate anxiety. Moreover, in his March 2012 PTSD examination, the examiner found that the Veteran's psychiatric disorder caused occupational and social impairment with occasional decrease in work efficiency, which corresponds to a 30 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. However, in a July 2011 statement from the Veteran's former fiancé, she suggested that the Veteran's symptoms were more severe. For example, she reported that any sudden noise startles the Veteran and puts him on edge as the noises reminded him of being in Iraq. She explained that the Veteran would be on edge for hours if something startles him at home. She also reported that the Veteran would be visibly upset at times when he returned from work because someone dropped something, a piece of equipment made a large noise, or he had to drive through a thunderstorm. She also described the Veteran has having no interest in anything, including normal activities, and that he seems very depressed and moody. In a February 2012 written statement, the former fiancé reported that the Veteran's PTSD symptoms had become worse in the past several months. She reported violent outbursts which seem to be unprovoked and sudden, and that the Veteran will go for days without brushing his teeth for lack of desire to do so. She also reported that the Veteran has taken less interest in things, and that they cannot go out because of the Veteran's suspiciousness, jumpy behavior from loud noises, or that he may have an outburst. She specifically described an incident when the Veteran became overly suspicious of a police officer because he had a gun. Further, she reported that his symptoms seem to worsen after he sees his counselor. Consistent with this finding is the Veteran's July 2011 VA examination where it was noted that the Veteran was experiencing increased irritability since beginning treatment. The Board also observes a February 2012 VA treatment record where the examiner noted the Veteran's depressive symptoms seemed more problematic and that he was still experiencing PTSD symptoms. Furthermore, the Board recognizes the Veteran's July 2011 VA examination where the examiner found that if the Veteran discontinued treatment, his prognosis may be more guarded, and his symptoms may increase into the moderate range. Here, the evidence shows that the Veteran began participating in group therapy in July 2011; however, in his March 2012 VA examination, the Veteran reported that treatment had declined because he had moved, and distance was a barrier. Similarly, in his July 2013 VA examination, it was noted that the Veteran was seen minimally by mental health; and in his November 2014 VA examination, the examiner noted that the Veteran has not engaged in any mental health treatment, to include psychotherapy or medication. To that end, the Board recognizes that the Veteran's 70 percent rating was based on his November 12, 2014 VA examination which found that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas; however, as indicated by the July 2011 examiner, the Veteran's symptoms were likely to worsen if the Veteran discontinued treatment. Therefore, as the evidence shows that the Veteran received minimal treatment and ultimately none at all, the Board finds that it is more likely than not that the Veteran's symptoms worsened prior to November 2014. This finding is also evidenced by the former fiancé's statements, as well as the VA clinician that found the Veteran's depressive symptoms seemed more problematic. The Board recognizes that the July 2011 examiner found that the Veteran's symptoms could increase into the moderate range without treatment; however, the record shows reports of violent outbursts, neglect of personal hygiene, and that he exhibited an inability to establish and maintain effective relationships as evidenced by his failed relationship and his increased isolation. Further, the Board finds that the Veteran's symptoms of avoidance, intrusive thoughts, irritability, exaggerated startled response, and hypervigilance occurred with such frequency and duration that the symptoms could cause severe occupational and social impairment. Therefore, as the evidence is in equipoise and resolving all doubt in favor of the Veteran, the Board finds a 70 percent rating is warranted for the period prior to November 12, 2014. However, the Board finds a higher rating is not warranted for either period on appeal as the Veteran did not exhibit total social and occupational impairment. With regard to occupational impairment, the record shows that the Veteran stopped working in 2011; however, he reported in his July 2013 VA examination that he was fired for missing too many days of work due to his back. Records from the Social Security Administration (SSA) also show the Veteran was granted disability benefits due to his back and anxiety. Concerning social impairment, while the Veteran preferred to isolate at home, he reported that he still talked to his father, grandmother, and aunt. In addition, an April 2015 VA treatment record shows the Veteran was living with a female friend and her three children. Moreover, an April 2017 VA treatment record shows the Veteran reported being in a better mood since the weather has improved, and that he has been getting out in his yard. The examiner also noted the Veteran exhibited better eye contact, minimal depression, and anxiety, and he was smiling on occasion. Furthermore, December 2017 and September 2018 treatment records show the Veteran had negative depression and PTSD screens; and his PTSD VA examinations from February 2017 and August 2021 found that his symptoms caused no more than occupational and social impairment with reduced reliability. Lastly, the Board recognizes the Veteran's attorney's contention in a November 2021 written statement concerning the Veteran's reported suicidal ideation. While this is true, the evidence shows that the Veteran had passive thoughts with no intent or plan. Notably, in his July 2011 VA examination, the examiner noted that the Veteran's suicidal thoughts revolved around "looking forward" to when he dies, but he denied intent or plans to harm himself. He also denied suicidal ideation in February 2012 and April 2015 VA treatment records, in addition to, all of his PTSD examinations. Further, treatment records show the Veteran was deemed a low suicide risk in May 2011, March 2015, and September 2016 suicide risk assessments. Therefore, any reported suicidal ideation the Veteran may have had was not of the severity, frequency, or duration to warrant a higher rating. Thus, for these reasons, the Board finds a 70 percent rating is granted for the period prior to November 12, 2014, but a rating in excess of 70 percent is not warranted at any time during the appeal period. 3. Entitlement to TDIU. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran has been assigned a 70 percent rating for PTSD for the period prior to November 12, 2014. Therefore, he is in receipt of a 70 percent rating for the entire appeal period beginning July 10, 2011. He is also service connected for a lumbar spine disability, rated as 20 percent; and radiculopathy, left lower extremity, rated as 10 percent, each from January 31, 2012. Thus, he has a combined rating of 70 percent from July 10, 2011, and 80 percent beginning January 31, 2012, and therefore, has met the schedular criteria for a TDIU for the entire appeal period. In his February 2021 VA Form 21-8940, Application for TDIU, the Veteran reported that his service-connected disabilities precluded him from working. After having reviewed the evidence of record, the Board concludes a TDIU is warranted. A review of the evidence shows that in his March 2012 VA examination for his back, the examiner noted that the Veteran's back disability caused functional impairment of increased pain with activities that require prolonged standing, sitting, bending, twisting, lifting, and carrying. Additionally, in his July 2013 VA back examination, the examiner found that the Veteran's back disability caused mild to moderate impact on sedentary employment due to pain with sitting, and severe impact on physical employment due to pain and limited movement. The Board notes that in his Application for TDIU, the Veteran reported being last employed in September 2011 as a hose former which is confirmed by SSA records. Specifically, SSA records show the Veteran was found to not have engaged in substantial gainful activity since September 2011 and the Veteran was awarded benefits due to his back and anxiety. The Board further notes that since his discharge from service, the Veteran's work history has been physical in nature. Notably, the July 2013 examiner found that the Veteran's back would cause a severe impact on physical employment. Moreover, the Board has determined that the Veteran's psychiatric disorder causes occupational and social impairment with deficiencies in most areas. Therefore, considering the Veteran's limited work history and the combined functional impact caused by his back and psychiatric disorders, the Board finds the preponderance of evidence is in favor of the claim and that the Veteran's service connected disabilities preclude the Veteran from securing and following gainful employment for the entire appeal period. Accordingly, a TDIU is granted. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.