Citation Nr: 21005893 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-35 386A DATE: February 2, 2021 ORDER Entitlement to an increased rating greater than 30 percent prior to July 31, 2012 and greater than 50 percent for service-connected posttraumatic stress disorder (PTSD) from that date is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) during the period prior to August 21, 2018 is remanded. FINDINGS OF FACT 1. During the one-year period prior to July 31, 2012, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. From July 31, 2012, the severity, frequency, and duration of the Veteran’s PTSD symptoms does not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. During the one-year period prior to July 31, 2012, the criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1966 to January 1970. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 decision of the Agency of Original Jurisdiction (AOJ) that in pertinent part, denied an increase in a 30 percent rating for service-connected PTSD. The Veteran testified before the undersigned Veterans Law Judge at an August 2018 hearing; a transcript of the hearing is of record. This case was previously remanded to the AOJ in April 2019, for additional development, and was subsequently returned to the Board. In a May 2019 rating decision, the AOJ effectuated the Board's grants of service connection for ischemic heart disease and a scar above the left eye. The AOJ rated ischemic heart disease as 60 percent disabling from August 31, 2010 and 100 percent disabling from August 21, 2018. In a July 2020 rating decision, the AOJ granted an increased 50 percent rating for PTSD, effective July 31, 2012, and granted special monthly compensation. The Veteran's combined service-connected disability rating is 80 percent from July 31, 2012 and 100 percent from August 21, 2018 with special monthly compensation. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of the claim for an increased rating for service-connected PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the current evidence, including the Veteran's September 2013 notice of disagreement and October 2016 substantive appeal, reasonably raises a claim for TDIU during the period prior to August 21, 2018 pursuant to the holding in Rice, and the issue is in appellate status. 1. Entitlement to an increased rating for PTSD The Veteran contends that his service-connected PTSD is more disabling than currently evaluated, and that a 100 percent rating should be assigned. See his September 2013 notice of disagreement. Initially, the Board notes that in its August 2020 supplemental statement of the case, the AOJ incorrectly characterized the issues on appeal as entitlement to an evaluation in excess of 30 percent for PTSD from August 17, 2010 through July 31, 2012, and entitlement to an evaluation in excess of 50 percent for PTSD from July 31, 2012. In fact, since this appeal arises from a July 31, 2012 claim for an increased rating for PTSD, the rating period on appeal begins on July 31, 2011 (one year prior to the increased rating claim). See 38 C.F.R. § 3.400(o). The effective date of an increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a complete claim or intent to file a claim is received within one year from such date, otherwise, date of receipt of claim. Id. During the rating period on appeal, the Veteran's service-connected PTSD has been rated as 30 percent disabling prior to July 31, 2012, and as 50 percent disabling from that date, under 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). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher prior to July 31, 2012, or a rating of 70 percent or higher from July 31, 2012. The Board concludes that during the period prior to July 31, 2012, the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. The Board concludes that during the period from July 31, 2012, the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). 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. A 70 percent rating is assigned when 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 cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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 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. Period prior to July 31, 2012 VA treatment records and the Veteran’s lay statements show that during the rating period from July 31, 2011 to July 31, 2012, the Veteran’s PTSD was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness and chronic sleep impairment) and symptoms associated with a 50 percent rating (flattened affect). He also had symptoms that are not listed with a specific rating, such as irritability and angry outbursts, often withdrawing to be alone, hypervigilance, exaggerated startle response, and recurrent distressing dreams. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating or higher. See 38 C.F.R. § 4.126. Further, irritability, anger, and hypervigilance are similar to suspiciousness, and recurrent distressing dreams and sleep disturbance are similar to chronic sleep impairment, which are contemplated by the assigned 30 percent rating. The Board also finds the level of impairment caused by the Veteran’s symptoms during this period more closely approximated the level associated with a 30 percent rating. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. A VA examination in November 2010, conducted prior to the rating period on appeal, reflects that the Veteran was appropriately dressed, cooperative, and attentive, with a constricted affect and anxious mood. He was taking anti-depressant medication. His speech, psychomotor activity, thought process and thought content were all unremarkable, and remote, recent and immediate memory were normal. He had been married to his wife for 40 years, and had a good relationship with her and with his siblings, but needed a great deal of time alone and had no friends. He reportedly retired in 2002, for which he was eligible by age or duration of work. Mental status examinations in VA treatment records during the rating period on appeal, including on psychiatric consultation in July and November 2011, reflect that the Veteran was alert and oriented times four, casually dressed and nicely groomed. He was pleasant and polite, and his mood was level with appropriate affect. Thought processes were intact, and there were no delusions or hallucinations, and no suicidal or homicidal ideation. In November 2011, the diagnostic impression was PTSD, improving with improved compliance with medication. The examiner opined that he seemed much improved. While the Veteran did experience symptoms contemplated by a 50 percent rating, specifically a constricted affect that was noted on VA examination in November 2010, prior to the appeal period, the evidence overall during the period from July 31, 2011 to July 31, 2012 does not demonstrate the level of impairment associated with a 50 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. In short, during the period prior to July 31, 2012, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 50 percent rating. The evidence does not show that the Veteran's PTSD had increased in severity on a factually ascertainable date during the one year prior to his July 31, 2012 claim. The criteria for a 50 percent or higher rating are not met during this period, and the appeal must be denied. Period from July 31, 2012 VA and private treatment records, the December 2012 and January 2020 VA examinations, and the Veteran’s lay statements show that his PTSD was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, and chronic sleep impairment), symptoms associated with a 50 percent rating (difficulty in understanding complex commands, impairment of short and long-term memory, panic attacks three or four times per week, disturbances in motivation and mood, impaired judgment, difficulty in establishing and maintaining effective work and social relationships), and symptoms associated with a 70 percent rating (suicidal ideation). He also had symptoms that are not listed with a specific rating, such as recurrent and distressing recollections of traumatic events in service, nightmares, flashbacks, difficulty concentrating, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, hypervigilance and exaggerated startle response. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. Although the Veteran has demonstrated irritability, he has not shown impaired impulse control such as unprovoked irritability with periods of violence. Further, irritability, anger, and hypervigilance are similar to suspiciousness, difficulty concentrating is similar to difficulty in understanding complex commands, feelings of detachment or estrangement from others is similar to difficulty in establishing and maintaining effective work and social relationships, and recurrent distressing dreams and sleep disturbance are similar to chronic sleep impairment, which are contemplated by the assigned 50 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the December 2012 and January 2020 VA examinations. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Mental status examinations in VA treatment records and the December 2012 and January 2020 VA examination indicate that the Veteran was oriented in all four spheres. In February 2019, he had good grooming, a sad and depressed mood, fair concentration, thoughts were clear and goal-directed, speech was slightly soft-spoken, insight and judgment were fair to good, and he had passive suicidal ideation without plan or intent. He had no homicidal ideation or hallucinations. The diagnoses were major depressive disorder, moderate, recurrent, and PTSD. On VA examination in January 2020, his speech was of normal quantity, but slow in speed. His thought associations were tight and logical with no evidence of delusions or hallucinations, his affect was mildly blunted, and his mood was mildly depressed. His remote, recent, and immediate recall ability were all good, but delayed recall was poor. He could do simple calculations in all four functions but could not make correct change. His abstract thinking ability was concrete by proverb interpretation, concentration and insight were fair. His insight was fair, and his judgment was poor. Records on file, including the Veteran's statements, reflect that during the rating period he was successfully working in a security job until at least 2015. The Veteran has been married to his wife for 50 years, and they both testified that while he is irritable with her and sometimes isolates, they are a close-knit family and do many activities together, such as bowling, visiting friends and family, and attending the sporting events of their grandchildren. He stated that his relationship with his three adult children was sometimes good and sometimes bad, and he tried to support his grandchildren in their activities. While the Veteran does experience symptoms contemplated by a 70 percent rating such as suicidal ideation, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Further, while the Veteran stated that he was unable to work and hold a job in his September 2013 notice of disagreement, at the December 2012 VA examination, he reported that he retired in 2002, and his attempts to obtain part-time employment had been unsuccessful because no one was hiring. A June 2014 VA outpatient treatment record reflects that the Veteran was working in airport security. At the August 2018 Board hearing, he testified that he retired from his main job in 2000, and then worked in security until three years ago, i.e., until 2015. The Board finds that the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 70 percent rating. The criteria for a 70 percent or higher rating for PTSD are not met throughout the rating period on appeal. REASONS FOR REMAND 1. Entitlement to a TDIU prior to August 21, 2018 is remanded. As noted above, a claim for a TDIU during the period prior to August 21, 2018 has been raised by the record. See Rice, supra. In his September 2013 notice of disagreement, the Veteran stated that he was unable to work and hold a job, but at the Board hearing, he testified that he retired from his main job in 2000, and then worked in security until three years ago, i.e., until 2015. This issue is remanded to give the Veteran an opportunity to complete a Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940). The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940, and ask him to fill the form out completely. 2. Then, after any additional development deemed necessary as a result of the Veteran’s response, adjudicate the claim for a TDIU prior to August 21, 2018. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.