Citation Nr: A21019709 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 190827-26562 DATE: December 10, 2021 ORDER Entitlement to an initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted for the entire period on appeal. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's service-connected PTSD was manifested by occupational and social impairment with deficiencies in most areas, but without total social and occupational impairment. 2. The Veteran has been employed during the entire appeal period, with no indication that employment marginal or in a sheltered environment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no higher, for service-connected PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107(b); 38C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2007 to September 2010, with service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's claim for entitlement to service connection for PTSD was granted with an initial disability rating of 30 percent in November 2017. A March 2019 rating decision increased the disability rating to 50 percent, effective as of June 22, 2017. A statement of the case (SOC) was issued in May 2019. In response to the SOC, the Veteran opted into the Appeals Modernization Act (AMA) review system by submitting a VA Form 20-0996 Decision Review Request: Higher Level Review (HLR) election form in May 2019. The Agency of Original Jurisdiction (AOJ) issued the HLR decision in June 2019, which is the decision on appeal. In the Veteran's August 2019 VA Form 10182 Decision Review Request: Board Appeal, he elected the evidence submission docket. Therefore, the Board considered the evidence of record at the time of the AOJ decision on appeal, dated in June 2019, as well as any evidence submitted by the Veteran within 90 days of the request for appellate review. 38 C.F.R. § 20.303. In September 2020, the Board issued a decision denying the claims presently on appeal. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and, in a Joint Motion for Partial Remand (JMPR), the claim was remanded to the Board by mutual agreement between the Secretary and the Veteran's attorney, on the basis the Board failed in not considering evidence submitted by the Veteran with his notice of disagreement (NOD) and within the 90 days following the Board's receipt of the Veteran's VA Form 10182. The Board will specifically address each issue in turn below, including the reasons for the prior JMPR. In compliance with JMPR, in June 2021 the Board issued a letter to the Veteran and his representative giving them the opportunity to submit additional argument in support of the Veteran's appeal, the record remained open for 90 days. Neither the Veteran nor his representative submitted additional arguments to the Board for consideration. Initial Rating The Veteran is seeking a higher initial rating for PTSD that he contends is representative of a higher rating than 30 percent, effective from June 22, 2017. Specifically, the Veteran contends that the combat incidents in Iraq and their aftermath have had a serious impact on his life causing survivors guilt, nightmares, severe depression and suicidal thoughts. See June 2017 Statement in Support of Claim. The Veteran further asserts that his PTSD manifests through symptoms of anger, anxiety, chronic sleep problems, depression, flashbacks, guilt, intrusive thoughts, lack of emotion, problems with communication, problems getting along with others, suicidal feelings/thoughts, suspiciousness, and an inability to share feelings. See August 2018 Statement in Support of Claim. Again, in September 2019 the Veteran submitted a list of his symptoms associated with his service connected PTSD to include anger, anxiety, chronic sleep problems, danger of hurting self or others, depression, flashbacks, guilt, intrusive thoughts, lack of self-esteem, problems at work, suicidal feelings/thoughts, and an inability to share feelings. See September 2019 Statement in Support of Claim. The Veteran's representative submitted several briefs on the Veteran's behalf arguing via boilerplate "common errors committed by the VA," to include generic mention of individual unemployability (TDIU). See August 2019 VA Form 10182 Notice of Disagreement; May 2019 VA Form 20-0996 request for Higher-Level review; August 2018 Notice of Disagreement. Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is 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. 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 frequency, severity, 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 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. Under the General Formula, a 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood), and the impairment is attributable to 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. A 100 percent rating is assigned when there is 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; 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. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, the list of examples set forth for each rating does provide guidance as to the severity of symptoms contemplated for that rating. Id. Accordingly, while each of the examples needs not be proven in any one case, the symptoms must be analyzed considering those given examples. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Relevant Factual Evidence In June 2017, the Veteran submitted a claim of entitlement to service connection for, inter alia, PTSD. See June 2017 VA Form 21-526EZ Fully Developed Claim. In a November 2017 rating decision, the AOJ granted service connection for PTSD and assigned a 30 percent rating, effective June 22, 2017. Subsequently, in a March 2019 rating decision, the AOJ increased the Veteran's rating to 50 percent effective June 22, 2017. In September 2017, the Verena presented to a VA initial PTSD examination where the examiner diagnosed the Veteran with PTSD in accordance with the criteria set out in the DSM-5. See September 2017 VA Initial PTSD Examination. The examiner noted the Veteran's symptoms as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and suicidal ideations. The examiner noted the Veteran reported passive suicidal ideations "about [three] months ago" however, the Veteran denied current plans or intent to harm himself. Id. at 1. Treatment records dated in February 2019 from the VA clinic in Hidden River Virginia Ohio note a negative PTSD screening and negative for homicidal and suicidal ideations. See February 2019 Hidden River VA Medical Records at 14. In March 2019, VA issued a PTSD DSM-5 disability benefits questionnaire (DBQ) where he was diagnosed with PTSD with mild depressive and anxious symptoms in accordance with the criteria set out in the DSM-5. See March 2019 VA PTSD DBQ. The examiner noted the Veteran has occupational and social impairment with reduced reliability and productivity. The examiner went on to note the Veteran's symptoms as including depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, and grossly inappropriate behavior. The examiner noted the Veteran's behavioral observations as oriented by 4, the Veteran denied current suicidal and homicidal ideations, the Veteran was unremarkable for hallucinations and delusions. Id. The Veteran reported he is currently working as a background investigator, he worked in the past while living in Ohio as a case manager for abused children. Id. Analysis As was agreed upon in the June 2021 JMPR, the Board shall evaluate the Veteran's statement submitted within the 90-day period allowed. See 38 U.S.C. § 7113 (c)(2)(A)-(B). Specifically, his self-reported suicidal ideations and reports of harming self and/or others. Upon review of the Veteran's entire history, the Board concludes that resolving all reasonable doubt in favor of the Veteran, his PTSD warrants a 70 percent rating for the entire period on appeal. Importantly, as this is an appeal as to the initial rating assigned, the relevant temporal focus is from June 22, 2017, the effective date of the award of service-connection, to May 7, 2019, the date of the SOC issued prior to the Veteran's HLR election. The Veteran is currently rated at 50 percent throughout the appeal period for his PTSD. As such, to warrant an increased rating, the evidence must show that the Veteran's symptoms, at the very least, more nearly approximate a rating of 70 percent at some point during the appeal period. See 38 C.F.R. § 4.7. When the Board applies the two-part test enumerated in Emerson to the present appeal, the Board finds the Veteran is entitled to a rating higher than 50 percent. Emerson v. McDonald, 28 Vet. App. 200, 212 (2016). The symptoms noted in the September 2017 VA examination report include depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and suicidal ideations. Additionally, the symptoms noted in the March 2019 VA DBQ include depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, and grossly inappropriate behavior. These symptoms are more consistent with a rating of 70 percent. See Vazquez-Claudio, 713 F.3d at 116. As noted above, a 70 percent rating assigned when there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood), and the impairment is attributable to 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. The record reflects the Veteran has been noted as displaying suicidal ideations and mild memory loss indicative of 70 percent rating. See September 2017 VA Initial PTSD Examination; March 2019 VA PTSD DBQ. Moreover, the symptoms of suicidal ideations and mild memory loss would cause significant impairment in occupational functioning. Significantly, in addressing 38 C.F.R. § 4.130, the Court held that "... the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). In light of the holding in Bankhead, the Board finds that the Veteran's reports of at least occasional suicidal thoughts throughout the appeals period is controlling probative evidence in determining that his psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas. The Board acknowledges that there is evidence that is potentially suggestive of a 100 percent rating; specifically, grossly inappropriate behavior (100 percent). See Vazquez-Claudio, 713 F.3d at 116. However, the frequency, severity, and duration has not been shown to rise to the levels contemplated by the 100 percent disability ratings. The Veteran persistently regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the VA examinations. See October 2015 Toledo VA Medical Records at 24; February 2019 Hidden River VA Medical Records at 14; March 2019 VA PTSD DBQ. With respect to the functional impact of the Veteran's PTSD on his ability to work, the September 2017 examiner noted intermittent periods of inability to perform tasks, although generally functioning satisfactorily. See September 2017 VA Initial PTSD Examination at 3. The September 2017 examiner noted the Veteran reported that he currently works full time as a case manager for abused children but reported having difficulty focusing on work and feeling fatigued do to sleep issues. Id. Additionally, the March 2019 VA examiner noted the Veteran exhibited occupational and social impairment with reduced reliability and productivity. See March 2019 VA PTSD DBQ. As such the Board finds that the occupational and social impairment with reduced reliability and productivity of the Veteran's PTSD on his ability to work is, contemplated by the 70 percent rating. The Board acknowledges the Veteran's contention of severe depression and danger of hurting self or others, which is mentioned in the criteria for a 70 percent rating. Specifically, looking at the symptoms that the Veteran exhibits that relate to the 70 percent rating, the record reflects that he experiences depression and suicidal ideations. The Veteran has self-reported depression and suicidal ideations just as the VA examiners have noted the same in their respective examinations. See June 2017 Statement in Support of Claim; August 2018 Statement in Support of Claim; September 2019 Statement in Support of Claim. For the reasons above, the Board finds that the Veteran's PTSD has primarily presented with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood), and the impairment is attributable to 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, which are contemplated by the 70 percent rating currently assigned. The Board further finds that the frequency, severity, and duration of the Veteran's reported symptoms of mild memory loss impact on his ability to work and reported severe depression and danger of hurting self or others do not create an overall disability picture resulting in total occupational and social impairment as contemplated by the100 percent rating. Furthermore, the March 2019 VA examiner diagnosed the Veteran with PTSD with mild depressive symptoms and anxiety symptoms. Id. Additionally, the Veteran has consistently been found to have negative PTSD screenings when attending routine VA treatment. See February 2011 Columbus VA Medical Records at 12; October 2015 Toledo VA Medical Records at 24; February 2019 Hidden River VA Medical Records at 14. Therefore, even considering the Veteran's reported psychiatric symptoms, the frequency, severity, and duration of these symptoms do not rise to the level required by the 70 percent rating. Similarly, the record simply does not support a finding that the Veteran is entitled to a 100 percent rating, based on total occupational and social impairment. The symptoms noted by the March 2019 VA examiner of grossly inappropriate behavior and the self-reported symptom of harming self or others do not create an overall disability picture resulting in total occupational and social impairment. As previously noted, the Veteran has not consistently displayed homicidal and/or suicidal ideations with the intent to harm himself or others. See March 2019 VA PTSD DBQ As for the March 2019 notation of grossly inappropriate behavior, the examiner noted the Veteran's symptoms only result in reduced reliability and productivity in occupational and social activities. See March 2019 VA PTSD DBQ. Furthermore, the Veteran reported current employment as a background investigator. Id. Therefore, even considering the Veteran's reported psychiatric symptoms, the frequency, severity, and duration of these symptoms do not rise to the level required by the 100 percent rating. The Board has not overlooked the Veteran's lay statements found in the record. See June 2017 Statement in Support of Claim; August 2018 Statement in Support of Claim; September 2019 Statement in Support of Claim. In this regard, the Veteran is credible to report on what he has seen and how he acts and feels. The Veteran is also certainly competent to report how he believes his PTSD has affected his life, including describing his symptoms. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, the Board finds more competent and credible the medical opinions provided by the VA examiners as discussed above, in rendering a decision as to the severity of the Veteran's PTSD based on the totality of the evidence, and the observable symptoms as demonstrated in clinical treatment notes and his several VA examinations conducted throughout the appeal period, which, as the Board notes, does consider his lay statements. Lastly, as agreed upon in the June 2021 JMPR, the Board finds the Veteran's self-reported suicidal ideations and reports of harming self and/or others are more indicative of the 70 percent rating. Specifically, the September 2017 VA examiner noted the Veteran reported passive suicidal ideations "about three months ago" and the Veteran denied current plans or intent to harm himself. See September 2017 VA Initial PTSD Examination. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an initial rating in excess of 70 percent at any time during the appeals period, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). TDIU The Board notes that a claim for TDIU is part and parcel of an increased rating claim when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran's representative presented boilerplate argument regarding the issue of a TDIU. See May 2019 VA Form 20-0996 request for Higher-Level review. A TDIU may be assigned where the schedular rating is less than total, when it is found that the claimant is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because 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). In this case, while the Veteran's representative referenced the issue of a TDIU, there is no indication that the Veteran was unemployed during the period on appeal. Indeed, as discussed above, the Veteran reported during his March 2019 VA examination that he was currently working as a background investigator, and had worked in the past as a case manager for abused children. Neither the Veteran nor his representative have asserted that this employment was marginal, that it was occurring in a sheltered environment, or that it should not be considered substantially gainful employment for any other reason. Because the Veteran was employed during the appeal period, a TDIU is not warranted. Shamil Patel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.