Citation Nr: 21005592 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-12 540 DATE: February 2, 2021 ORDER Entitlement to an evaluation of 70 percent for posttraumatic stress disorder (PTSD) from November 4, 2014, is granted. Entitlement to an evaluation in excess of 70 percent for PTSD is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Beginning November 4, 2014, the Veteran’s PTSD has been manifested by persistent suicidal ideations with depression and anxiety, panic attacks, chronic sleep impairment, and problems with memory and concentration; but without, suicide attempts or homicidal ideation, impairment of thought processes or communication, delusions, hallucinations, or grossly inappropriate behavior. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 70 percent, but not higher, for PTSD for the period beginning November 4, 2014, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2019). 2. The criteria for an evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411 (2019) REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from March 2003 to March 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA). This case was remanded in June 2020 for further development; it has since been re-assigned to the undersigned Veterans Law Judge. Entitlement to an increased evaluation for PTSD The Veteran contends that he is entitled to a higher rating for his PTSD. He has been assigned a staged rating and is currently rated as 50 percent disabling for the period prior to March 15, 2017, and as 70 percent disabling thereafter. As will be discussed in detail below, the Board finds that a uniform rating of 70 percent, but no higher, is warranted for the entire period on appeal. 38 C.F.R. §§ 4.7, 4.130, DC 9411. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating a disability’s severity, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period, a practice known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). As mentioned above, a staged rating has already been assigned. Ratings are assigned according to the manifestation of symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency, and duration, have caused the level of occupational and social impairment associated with a given rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board notes that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Id. at 19. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran has been rated under DC 9411 for PTSD, which is evaluated under the General Rating Formula for Mental Disorders. Under the DC, the criteria for a 50 percent rating are 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. The criteria for a 70 percent rating are 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); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are 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 of 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. 38 C.F.R. § 4.130, DC 9411. In an increased rating claim, if it is factually ascertainable that an increase in disability occurred within the one-year period prior to filing the claim, the effective date will be the date the increase was shown. 38 C.F.R. § 3.400(o)(2). “[A]n increase in a veteran’s service-connected disability must have occurred during the one-year period prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date.” Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). This is the so-called one-year “look-back” period. Because the Veteran filed his increased rating claim on December 5, 2014, the Board will determine if it is factually ascertainable that the Veteran’s PTSD increased at any point since December 5, 2013. A November 18, 2014, VA treatment record is the earliest treatment record during the relevant appeal period (to include the one-year look back period). During that treatment, the Veteran described chronically increased irritability since returning home from his tour in 2006. He reported that he tends to “flip out” when he is angry, with yelling and at times punching doors. He had a history of becoming aggressive with his wife approximately one year prior. He reported a history of recurrent suicidal ideation with at least 10 past occasions in which he had formulated a clear plan involving either a knife or a gun. He most recently experienced suicidal ideation two weeks prior; he reported having suicidal ideation some days but denied any current plan or intent to harm himself. There was no evidence of delusions and he denied hallucinations. Overall, the Board finds that the record contains several instances in which the Veteran reported suicidal ideation. See January 2015 treatment record (occasional thoughts of suicide but denied plan or intent; recurrent fleeting ideation nearly every other day); June 2015 (suicidal ideation after being let go from work); December 2015 treatment record (chronic morbid ideation but denied suicidal plan or intent); January 2016 treatment record (wants to commit suicide some days but does not have “the guts”). Although there were moments when symptoms appeared to improve, the Veteran reported in his March 2017 VA Form 9, substantive appeal, that the therapy he underwent in 2015 and 2016 never really worked; he told his therapist it did but that was not true. He reported inability to control anger which caused extreme amounts of conflict between him and coworkers and that suicidal thoughts go through his head all the time. Upon review of the above, the Board finds that the evidence shows that the Veteran’s overall disability picture disability picture more nearly approximates the severity required for a 70 percent rating beginning November 4, 2014. The Board finds significant the Veteran’s reports of suicidal ideation. During his November 18, 2014, VA treatment, he specifically reported suicidal ideation two weeks prior (i.e., November 4, 2014). The Board finds that this is the date on which it is factually ascertainable that an increase in disability occurred. As noted above, suicidal ideation alone may cause occupational and social impairment in most areas, consistent with a 70 percent rating. The Board also notes that the evidence from this period documents persistent problems with anger and irritability. Although the Veteran does not exhibit symptoms such as illogical speech, disorientation or near-continuous panic, the Board notes that the symptoms list in the general rating formula is non-exhaustive and finds that the overall severity of the Veteran’s symptoms for the period beginning November 4, 2014, particularly his history of suicidal ideation, outbursts of anger and irritation, and persistent depression and anxiety warranted a 70 percent rating. The Board further notes that the Veteran has already been granted a 70 percent rating for the period beginning March 15, 2017, and finds that the Veteran’s symptoms have been essentially consistent throughout the entire period. A 70 percent rating for the period beginning November 4, 2014, is therefore warranted. Having found that a 70 percent rating is warranted beginning November 4, 2014, there is now a uniform rating for the entire period on appeal. The Board will now consider whether a rating in excess of 70 percent is warranted at any point during the appeal period. The Board finds that the preponderance of the evidence is against an evaluation above 70 percent for the period on appeal. The medical evidence of record does not support the conclusion that the Veteran’s overall disability picture more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 100 percent disability evaluation based on total occupational and social impairment. 38 C.F.R. §§ 4.7, 4.130, DC 9411. That is, the competent evidence of record does not show that the Veteran experiences gross impairment in thought processes or communication, 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. As noted above, the Veteran’s PTSD has been characterized by persistent depression and anxiety, panic attacks, suicidal ideation, chronic sleep impairment, and problems with memory and concentration, all of which are encompassed by the 70 percent rating already assigned. During his March 2015 VA examination, the Veteran reported that his time outside of work revolves around being a spouse and father and was involved in refinishing the basement. Although he enjoyed sports, watched ball games and played flag football with friends, and played in a “guys night” poker game every few months, he stated that he “doesn’t like people” and gets agitated by them. He specifically avoided debates with them about the merits of the teams because he will become verbally and physically agitated. The Veteran reported that his “memory sucks” and that he forgets stuff like tightening bolts at work. He was appropriately dressed and responded appropriately throughout the examination; there were no obvious difficulties with speech, concentration, gait, orientation, or fund of knowledge. During his March 2017 VA examination, the Veteran reported that he and his wife were divorcing and that his relationship with his children was strained due to his isolation. He denied having friends anymore. He reported difficulties in maintaining a job and was involved in frequent arguments with coworkers; he started his own business but that failed as well. He denied having any concentration abilities or short-term memory and reported low self-worth. The examiner described the Veteran’s memory loss as mild and noted his difficulty in establishing and maintaining effective work and social relationships. The Veteran was casually and appropriately dressed, with appropriate hygiene and grooming. Attention and concentration were fair. His thought content was free of any delusions and there was no evidence of thought disorder. His judgment was intact and he was competent to manage his own finances. The Veteran’s social functioning was impacted as evidenced by his avoiding others, isolating, and difficulty connecting emotionally to others; his occupational functioning was “significantly impacted” as well in that he was unable to keep a job for more than a year and described difficulties with anger/irritability, depression, and anxiety at work. In September 2018, the Veteran denied social withdrawal and escalation of anger to violence. In February 2019, he engaged in a verbal argument with his ex-wife and said that he “might as well kill himself”; he continued that he said this to get attention but he did have a plan. In April 2019, he continued to report intermittent suicidal ideation. In August 2019, he stated he was pretty happy most of the time. During February 2020 treatment, he reported being stable psychiatrically and able to participate and enjoy activities. His anxiety was situational and his irritability was neither pervasive nor marked. During his September 2020 VA examination, the Veteran reported that he and his wife divorced in February 2019 and that he had been dating another woman for almost a year. He had difficulty staying at one job due mainly to his temper, dislike for various things about the job, and/or getting fired. He was currently employed in a job that began in January 2020. His most recent suicidal ideation occurred two months prior. The examiner noted depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and in adapting to stressful circumstances, suicidal ideation, and impaired impulse control. No memory problems were noted. His behavior and psychomotor activity were normal and attitude toward evaluation was cooperative. His affect and mood were sad and congruent. His speech and thought were within normal limits and no perceptual disturbance was noted; he was oriented times four and alert. The Veteran has both insomnia and hypersomnia with at least one time in a month where he demonstrated hypersomnia, and not bathing for at least one week with absolutely no interest in anything, including eating. He is always tired, agitated, keyed up, and has panic attacks two to three times per month that are demonstrated by chest pain, being hot and lighted headed, shaking, racing heart rate, exaggerated irritability, and difficulty breathing. Despite this, he has had a girlfriend for almost a year, which he reported has been a great deterrent to his depression. He also has a job which creates some connection to a social institution. The examiner ultimately noted deficiencies in most areas based on suicidal ideation, deficiencies at work and in family relations, mood demonstrated by an increase in depression, poor hygiene, irritability, and arguments at work, unprovoked irritability, and difficulty in adapting to stressful circumstances. Overall, while the September 2020 VA examiner noted poor hygiene (potentially once a month), there is no indication that the Veteran has had total occupational and social impairment at any point during the appeal period. The evidence does not indicate that the Veteran’s memory loss is of a severity equivalent to forgetting names of close relatives or his own name or occupation as contemplated by a 100 percent rating. The record also does not indicate a history of harm to himself or others. The evidence consistently indicates no history of suicide attempts and no homicidal ideation. There is also no indication of impairment of thought processes or communication, and no evidence of delusions, hallucinations, or grossly inappropriate behavior. The Board finds significant that the Veteran last reported working at a job for nine months and had a girlfriend for almost a year. The Board therefore finds that the evidence shows that the Veteran’s overall disability picture disability picture more nearly approximates the severity warranting a 70 percent rating. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran’s disability in his favor. The Board finds that the Veteran’s overall picture more nearly approximates that of a 70 percent disability rating, and his symptoms do not more nearly reflect the frequency, severity, and duration of symptoms associated with the 100 percent rating. An evaluation in excess of 70 percent is therefore not warranted. REASONS FOR REMAND Entitlement to a TDIU is remanded In September 2020 correspondence, the RO requested that the Veteran submit a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. To date, there is no VA Form 21-8940 in the claim file. Hence, much of the information needed to make an informed decision on the matter of TDIU eligibility is missing, such as the Veteran’s employment history for the last five years that he worked, his total earned income for the past 12 months, and his efforts at trying to obtain employment. The Board notes that it also appears that the Veteran may be currently employed. In pursuing a claim, a claimant has a responsibility to cooperate in developing all facts pertinent to the claim; that is to say, VA’s duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). If the Veteran wishes help in developing his claim, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining evidence. Id. The Board will provide one more opportunity for the Veteran to complete and submit this form and strongly encourages him to do so. The matter is REMANDED for the following actions: 1. Provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and associate the completed form with his claim file. 2. If upon completion of the above action the issue of entitlement to TDIU remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Matta, 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.