Citation Nr: 21006246 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-29 871 DATE: February 3, 2021 ORDER Entitlement to an initial rating of 70 percent, but not higher, prior to November 2, 2018, for posttraumatic stress disorder (PTSD) now with unspecified depressive disorder, is granted. Entitlement to a rating in excess of 70 percent as of November 2, 2018, for posttraumatic stress disorder (PTSD) now with unspecified depressive disorder, is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to April 6, 2018 is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD manifested in occupational and social impairment with deficiencies in most areas prior to November 2, 2018. 2. The Veteran’s PTSD has not manifested in total occupational and social impairment at any point during the appeal period. CONCLUSIONS OF LAW 1. Prior to November 2, 2018, the criteria for an evaluation of 70 percent, but no greater, for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9413. 2. As of November 2, 2018, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to October 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in April 2020. The case has been returned to the Board at this time for further appellate review. 1. Entitlement to an initial rating of 70 percent, but not higher, prior to November 2, 2018, for PTSD, is granted. 2. Entitlement to a rating in excess of 70 percent as of November 2, 2018, for PTSD, is denied. As an initial matter, the Board notes that this matter was remanded in April 2020 for the issuance of a supplemental statement of the case and to allow the Veteran to identify private treatment he stated he received regarding his PTSD. In June 2020, VA sent the Veteran a letter requesting that he provide information regarding any private treatment he may have had for PTSD that is not already of record. The record reflects that the Veteran failed to respond to this letter and has not otherwise provided the requested information. The Veteran must cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA’s duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). Accordingly, the Board must decide the claim based on the current evidence of record. In addition, a supplemental statement of the case was issued in July 2020. For these reasons, the Board finds there has been substantial compliance with its prior remand directives. Stegall v. West, 11 Vet. App. 168 (1998). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Here, the Veteran’s PTSD is rated 30 percent prior to September 19, 2016, 50 percent from September 19, 2016 to November 1, 2018, and 70 percent thereafter. Under the General Rating Formula for Mental Disorders, a rating of 70 percent 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. A 100 percent disability rating is reserved 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; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the claimant’s symptoms, but it must also make findings as to how those symptoms impact the claimant’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Since the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission.” 38 C.F.R. § 4.126(a). The Board must also “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 moment of examination.” Id. Accordingly, an examiner’s classification of the level of psychiatric impairment is to be considered but is not determinative of the VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). A January 2015 VA examination reflects the examiner’s opinion that the Veteran’s PTSD resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran reported being close with his family and that his current relationship was going well. However, in establishing the diagnostic criteria for PTSD, the VA examiner noted that the Veteran experienced feelings of detachment or estrangement from others, irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, exaggerated startle response, and problems with concentration. The VA examiner also noted that the Veteran’s PTSD symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, nightmares, and periodic flashbacks. During the August 2016 hearing with a decision review officer, the Veteran testified that he did not reveal the true severity of this PTSD symptoms during the January 2015 VA examination. The Veteran’s spouse testified regarding the Veteran’s symptoms, including violent nightmares, avoidance of crowds, lack of friends or hobbies, always wanting to sit facing the door, and acting detached in a crowd. A September 2016 VA examination reflects the VA examiner’s opinion that a mental condition had been formally diagnosed, but that the Veteran’s symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran reported no significant relational problems with his spouse but that he was not involved in social events outside of work. The VA examination reflects that the Veteran was working full time at a university as the State Director of Business, and that he reported no significant work-related problems, but that he was not close to his staff and that he compared those relationships to being on guard. In establishing the diagnostic criteria for PTSD, the VA examiner noted that the Veteran experienced feelings of detachment or estrangement from others, hypervigilance, and exaggerated startle response. The VA examiner also noted that the Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. The Veteran reported nightmares, irritability, some forgetfulness, being suspicious of others, fatigue, low motivation, low energy, not having close friends, and not feeling grief when his best friend died earlier that year. Finally, the VA examiner noted that the Veteran’s grooming and hygiene would fit that of an executive, and that the Veteran denied a history of suicidal ideations but shared some feelings of indifference of whether his life was long-lived. A December 2018 VA examination reflects the VA examiner’s opinion that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported frequent moods including depression, anxiety, and stress, but denied suicidal ideation, hallucinations, and delusions. The VA examiner noted that the Veteran’s symptoms included sad feelings, loss of interest in previously enjoyable activities, chronic fatigue, problems with sleep, feeling restless, irritability, increased muscle tension, nightmares, traumatic memories, avoiding these memories, hypervigilance, decreased sexual interest, low self-esteem, mild memory loss, and disturbances of motivation and mood. In establishing the diagnostic criteria for PTSD, the VA examiner noted that the Veteran experienced persistent and exaggerated negative beliefs or expectations about oneself, others, or the world, and feelings of detachment or estrangement from others. The VA examiner noted that the Veteran’s hygiene and behavior were appropriate, his judgment was not impaired, his concentration, judgment, and abstract thinking were normal, and that suicidal and homicidal ideations were absent. Finally, the VA examiner opined that the Veteran’s impulsivity and irritability affects his ability to work well with others and that he has difficulty working with authority figures, communicating, remembering and following instructions, concentrating, interacting with coworkers and/or customers, and adapting to changes or stress. The Board finds that, after resolving any benefit of reasonable doubt in the Veteran’s favor, a 70 percent evaluation, but not higher, is warranted for the Veteran’s PTSD prior to November 2, 2018. The record reflects that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking, and mood. The January 2015 VA examiner noted that the Veteran experienced impaired impulse control (such as unprovoked irritability with periods of violence) because he displayed irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects. In addition, the December 2018 VA examiner noted that the Veteran had difficulty in adapting to stressful circumstances (including work or a work like setting) because his impulsivity and irritability affects his ability to work well with others and he has difficulty working with authority figures, communicating, remembering and following instructions, concentrating, interacting with coworkers and/or customers, and adapting to changes or stress Further, the Veteran’s record establishes his inability to establish and maintain effective relationships. While the Veteran initially reported good relationships with his family, each VA examiner found the Veteran felt detached or estranged from others. In August 2016, the Veteran’s spouse testified that he had few close friends. In September 2016, the Veteran reported having almost no close friends, and that he felt no grief when his best friend passed. The Veteran also reported that he was not involved in social events outside of work and that he was not close with his co-workers, noting that he compared his relationships at work to being on guard. Thus, the Veteran’s PTSD symptoms have caused the Veteran to have deficiencies in most areas, such as mood, work, and ability to establish and maintain social relationships. An evaluation of 100 percent for the Veteran’s service-connected PTSD is not appropriate at any time during the appeal period, as the evidence does not coincide with total occupational and social impairment. The Veteran continued to maintain close relationships with his spouse and there is no evidence of severe memory loss such as the inability to remember his own name or own occupation, grossly inappropriate behavior, or gross impairment in thought processes or communication. The Veteran was consistently noted to be oriented to time, place, and person, and he denied delusions and hallucinations. The Veteran was consistently noted to be well-groomed with appropriate hygiene. The Veteran was also able to obtain and hold a job with significant responsibility during most of the appeal period. Finally, the Veteran was never found to be in danger of hurting himself or others, or unable to perform activities of daily living. Therefore, the Board finds an evaluation of 70 percent, but no higher, is warranted throughout the appeal period for the Veteran’s service-connected PTSD. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. It appears there are outstanding VA treatment records relevant to the Veteran’s hearing loss claim. Specifically, a July 2016 VA treatment record reflects that an audiogram was performed and that it is viewable by VISTA users, however, the Board does not have access to VISTA, and therefore, cannot view the July 2016 audiogram results. The July 2016 audiogram results have not otherwise been associated with the claims file. Accordingly, remand is warranted to associate all relevant VA treatment records with the claims file. 2. Entitlement to TDIU, prior to April 6, 2018, is remanded. The issue of entitlement to TDIU prior to April 6, 2018, is inextricably intertwined with the rating assigned for the Veteran’s service-connected bilateral hearing loss. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, including the July 2016 audiogram results, and associate them with the claims file. 2. Readjudicate the issues on appeal based on all the evidence of record. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the matter to the Board, if otherwise in order. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.