Citation Nr: 21077449 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-61 945 DATE: December 29, 2021 ORDER Entitlement to an initial 70 percent disability rating for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total rating based upon individual unemployability (TDIU) due to a service-connected disability is remanded. FINDING OF FACT During the period on appeal, the evidence of record reflects that the Veteran's symptoms from his PTSD approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, but not both total occupational and total social impairment. CONCLUSION OF LAW The criteria for an initial 70 percent rating for service-connected PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1998 to January 2007. These issues are before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The March 2015 rating decision initially granted a 30 percent rating for PTSD. However, a September 2017 Statement of the Case (SOC) increased the rating to 50 percent disabling, effective July 24, 2013. In August 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ), who held the record open for an additional 60 days for him to provide supplemental evidence. None was provided. A copy of the transcript is of record. Entitlement to an initial 70 percent disability rating for PTSD is granted. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. The Veteran's PTSD was assigned an initial 50 percent disability rating under Diagnostic Code 9411, effective July 24, 2013. 38 C.F.R. § 4.130. PTSD is evaluated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for 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 effective work and social relationships. Id. A 70 percent rating is warranted for 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 that 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. Id. 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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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. Symptoms listed in the General Rating Formula for Mental Disorders 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires the presence of certain symptoms and that those symptoms have caused the requisite occupational and social impairment. Id. The Veteran contends that a higher initial rating than 50 percent is warranted for his PTSD with alcohol use in sustained remission. His PTSD was assigned an initial 50 percent disability rating under Diagnostic Code 9411, effective July 24, 2013. 38 C.F.R. § 4.130. PTSD is evaluated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for 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 effective work and social relationships. Id. A 70 percent rating is warranted for 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 that 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. Id. 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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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. Symptoms listed in the General Rating Formula for Mental Disorders 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires the presence of certain symptoms and that those symptoms have caused the requisite occupational and social impairment. Id. The Veteran contends that a higher initial rating than 50 percent is warranted for his PTSD. In his December 2015 notice of disagreement (NOD), he argues that at least a 70 percent is warranted since he lost his job in 2015 and struggled since service to maintain a job. Also, he has been unable to follow through with complex routine tasks, gets disoriented from anxiety and panic attacks, and daydreams of past events. He also has a hard time expressing his thoughts, maintaining relationships, and forgetting daily tasks. He was enrolled in school but had to drop out, has gotten DUIs, and even filed for bankruptcy. Social Security Administration (SSA) treatment records received in May 2016 note that the Veteran reported PTSD, anxiety, daily panic attacks, inability to engage in social relationships, marked difficulty in maintaining concentration, depression, flashbacks, and sleep disorder. A medical evaluation noted the Veteran was a thrice-divorced father with two DUIs, three-year employment doing video editing, and was living with his family. The clinician found that the Veteran had difficulty with concentration and avoided social contact. He was also unable to work due to anxiety and panic attacks but was able to drive, shop, and manage money. Restriction on activities of daily living and maintaining social functioning was found to be mild. He also had moderate difficulties in maintaining concentration, persistence, or peace. Regarding repeated episodes of decompensation, each of external duration, the clinician found none. A May 2016 note received from the Veteran's previous employer noted that his "termination was not due to misconduct. We do believe that he was working to the best of his ability." In his November 2017 Form 9, the Veteran stated that he was unable to function proficiently with everyday tasks, activities and was unable to find a job in two years because he was unable to get through interviews without panic attacks and mood swings. He lost his last job because of ineffectiveness, lack of productivity, and lost time. He returned to school but dropped out because of his of PTSD. He was unable to keep relationships with friends and family because of panic attacks and depression. Additionally, VA treatment records note that the Veteran in May 2014 had three mental status examinations (MSEs). The first, dated March 21, 2014, noted that the Veteran's speech was of normal rate and volume. His thought flow was organized/linear, and his thought content, he denied audio/visual/hallucinations or delusional symptoms. His mood was "generally positive," but he indicated that it was difficult for him to concentrate at times due to images he had seen in service. His cognition was grossly intact. The clinician summarized that the Veteran, although he had a "wonderful family" and a good job, productivity was negatively affected by intrusive thoughts from his service. MSEs conducted on March 25, 2015, noted that the Veteran was well-groomed and neatly dressed in appearance. His behavior was noted as slightly guarded and cooperative, engaged, and appropriate. His speech was within normal limits in rate and tone. His mood/affect was anxious/congruent, tearful at times, anxious, and dysphoric. Regarding his thought content, he denied suicidal and homicidal ideations, with no evidence of psychosis or mania. His judgment, insight, and cognition were noted as good and intact. The Veteran underwent an Initial Post Traumatic Stress Disorder (PTSD) VA examination in March 2015. He reported weekly dreams/nightmares and intrusive thoughts 2-3 times per week. His current job involved video editing, which made him lose focus on what he was doing because he would start to think about video footage from the service. He also reported having heart palpitations, getting sweaty, and "nonfunctional" for several minutes at work where he would have to take a break, or he is just "zoned out." His sleep varied, with him, rarely getting more than six hours, more often four hours. The examiner diagnosed PTSD and Alcohol Use Disorder in sustained remission. The examiner noted that the alcohol use disorder was determined to be in sustained remission for over a year and was not causing any current symptoms. Regarding the level of occupational and social impairment, the examiner determined that it was best summarized as 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 symptoms of his disability included anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran was capable of managing his financial affairs. In April 2016, the Veteran was afforded a second Initial PTSD examination. The Veteran reported that since the last exam, he dropped out of school in April 2015 from studying for a master's degree in marketing because of difficulty focusing and staying on task. He reported that anything involving computer screens triggered memories of service. He was also "pushed out" and given a chance to resign from his job in October 2015 because he could not keep up doing video work, as it reminded him of his military experiences viewing horrific videos. He has not worked since. He was arrested in March 2016 and given a ticket for driving past the time limit by about four minutes. He also reported being under restricted driving conditions because of two prior DUIs. The examiner again diagnosed PTSD. He determined that the Veteran's occupational and social impairment level was best summarized by occupational and social impairment with reduced reliability and productivity. The following symptoms applied to his PTSD: depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationship. The examiner found the Veteran was capable of managing his financial affairs. At the examination, the Veteran was casually dressed and appropriately groomed. His affect was congruent, "oddly engaging," and his thought processes were somewhat vague and circumstantial at times. He was fully oriented and reported no perceptual disturbances. His anxiety was ongoing, particularly situational triggers outside the home. At home, he stays away from televisions and computer screens as it triggers bad memories. He had panic attacks several times per week. He also had depression, some of which was related to the loss of his job and isolation. His voice and speech were within normal limits, and his intelligence level appeared to be average. No psychomotor agitation nor retardation was observed. Furthermore, his memory was generally intact though he noted some difficulties with memory at times, and that was noted previously. He retired to bed between 8 and 9 p.m., sleeping in 24-hour spurts. His appetite was disrupted, and he often binge ate. His concentration was difficult as he had problems focusing and staying on task. His mood was up and down, and his energy level, low. He got up daily between 2 and 6 a.m. to get his kids to school, although the 4-year-old only went to school for a couple of hours. He made the meals, did household chores, and primarily spent time taking care of his children. He does not socialize with others. Additionally, of record is the Veteran's Board testimony. He testified that he only has his children 50 percent of the time as he shares physical custody with their mother. When he has them, they "do not get to do games and stuff like that. [He] does not go out to socialize [nor] work because of the social aspect." He also testified to having panic attacks and the inability to focus, as well ast stress which contributes to difficulty performing tasks. Regarding obsessional rituals or compulsive behaviors, he Veteran testified to not getting much sleep, and to checking his doors many times at night. Before reporting for his hearing, he turned home twice because he did not think that he had shut the garage door. "It is just kind of not being sure that I did the right task the first time around." He "panics constantly and depression is a way of life." He testified to the disuse of medication, "prescribed anti-depressants seemed to make things worse in some ways," including having recurrent nightmares. In terms of social relationships, the Veteran also testified to being divorced three times and not being involved in any type of socializing. There is a woman from church who comes to his house a few times a week to help him pay "bills and stuff like that, like make --helping me keep on track. So, that's probably been one of the better therapies." Based on a review of the evidence as presented above, the Board finds that the frequency, severity, and duration of the Veteran's PTSD reported or shown are suggestive of occupational and social impairment with deficiencies in most areas, the level of impairment contemplated by an initial 70 percent rating. The record shows that during the appeal period the Veteran has experienced poor sleep, continuous panic attacks, and depression affecting the ability to function independently, appropriately, and effectively. He also exhibited obsessional rituals that interfered with routine activities and difficulty in adapting to stressful circumstances. Further, there was an inability to establish and maintain effective relationships. Therefore, based on the above, the Board finds that the 70 percent criteria contemplate the Veteran's frequency, severity, and duration of his acquired psychiatric symptoms. Thus, an initial 70 percent disability rating is warranted. The evidence of record during this period also shows that the Veteran's PTSD is not more closely described by both total occupational and total social impairment during the period. The risk of self-harm is contemplated by the 100 percent criteria, which addresses whether one is a persistent danger to himself or others. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Here, while the evidence shows two prior DUIs and an arrest in March 2016 for driving above the speeding limit, the cumulative evidence of record does not show severity enough to cause both total occupational and total social impairment. Further, no VA clinician, examiner, nor private clinician has found the Veteran to be a persistent danger of hurting himself or others. The MSEs conducted in March 2015 all noted the Veteran's denial of current suicidal/homicidal intent or plan. During the appeal period, although the Veteran reported being married three times and divorced, he has been given joint custody of his children; taking care of them 50 percent of the time. In such care, he gets them ready for school, makes their food, cleans the house, does laundry, and spends time with them. This supports a finding that he is not totally socially impaired. Additionally, a woman from his church visits him, showing that he has a relationship with a person outside of his immediate family. Even though his friend from church helps him pay his bills, the VA examiners have consistently found him able to manage his finances. Lastly, although he was arrested in March 2016 for driving past the speed limit "by about four minutes," it seems a one-time event since the record reflects no other legal problems during the appeal period. Lastly, while the Veteran has endorsed the inability to concentrate, depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationship, no examiner or clinician has found him to have gross impairment in thought processes or communication, persistent delusions, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent ability to perform activities of daily living, disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. "Total" is defined as "whole, not divided; full; complete" and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). As the most probative evidence of record does not show total social impairment, the 100 percent rating is not warranted. Therefore, both total occupational and total social impairment are required for the 100 percent rating for PTSD. Given the frequency, nature, and duration of the Veteran's symptoms, the Board finds that they do not result in total occupational and total social impairment for the period on appeal. They do not more closely approximate the types of symptoms contemplated by the 100 percent rating, and therefore, an initial 100 percent rating is not warranted. Vazquez-Claudio, 713 F.3d at 114 (holding that a veteran "may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration"). In sum, the Board finds that an initial 70 percent rating during the entire appeal period most closely describes the Veteran's symptoms from his PTSD. The probative evidence of record does not show that the particular symptoms associated with the higher percentage or others of similar severity, frequency, and duration result in both total occupational and total social impairment. Thus, a 100 percent rating is not warranted. REASONS FOR REMAND Entitlement to a TDIU is remanded. Total disability exists when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is, when the disabled person is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). Here, with the grant of 70 percent for an acquired psychiatric disorder beginning July 24, 2013, along with his service-connected lumbosacral strain at 10 percent disabling from July 23, 2013, the schedular criteria are met. Notwithstanding, the Board cannot adjudicate the claim for TDIU herein since the Veteran testified at his Board hearing to having been employed during the pendency of the appeal. The Board notes the April 2016 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, does not contain complete employment history, including exact dates of employment, employer, whether full-time or part-time work, and wages therefrom. As the record wants a more recent VA Form 21-8940, the issue of a TDIU must be remanded. Accordingly, the matter is REMANDED for the following action: 1. Provide the Veteran and his representative with a VA Form 21-8940 and 21-4192 and Request for Employment Information in Connection with Claim for Disability Benefits. Request that he completes and returns said forms. The Veteran should also be notified that his completed VA Form 21-8940 should list his complete employment history, to include part-time work, dates, and wages therefrom, and which service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the appropriate time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.