Citation Nr: 21006254 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-25 493A DATE: February 3, 2021 ORDER Entitlement to an initial 70 percent disability rating for the Veteran's service-connected post-traumatic stress disorder is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire period on appeal the severity, frequency, and duration of the Veteran’s psychiatric symptoms more closely approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for establishing entitlement to an initial 70 percent disability rating for the Veteran's service-connected post-traumatic stress disorder have 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 FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1968 to December 1969. The Veteran died in October 2016. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in July 2020, it was remanded for additional development. Specifically, the RO was instructed to obtain any outstanding SSA records and provide the Appellant an opportunity to submit any additional private treatment records. The RO undertook the required development. As such, the Board finds that the AOJ substantially complied with the directives in the July 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). PTSD The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. In pertinent part, a 70 percent disability 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 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 worklike setting); and inability to establish and maintain effective relationships. Finally, a 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought process 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. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Analysis Critically, the Board observes that the rating criteria for a 70 percent rating for PTSD indicates an array of symptoms, which are likely sufficient to cause impairment and deficiencies in most areas of life functioning, to include work, school, family relations, judgment, thinking, or mood. Such symptoms need not rise to the level of activity preclusion, but rather negatively influence or impact upon most areas of life functioning. A higher 100 percent rating is warranted when the evidence indicates total impairment. 38 C.F.R. § 4.103, Diagnostic Code 9411. The symptoms considered in determining the level of impairment under the Rating Schedule for psychiatric disabilities are not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). Mauerhan 16 Vet. App. 436. The Board has thoroughly reviewed the Veteran’s claims file, including the medical evidence and the lay statements submitted by the Veteran and his wife. The Veteran’s relevant medical evidence, including; August 2010, July 2011, and April 2016 VA PTSD examinations; a July 2011 private psychiatric examination; private treatment records; Social Security Administration (SSA) records; and VA treatment records, noted multiple psychiatric symptoms. These include: depressed mood; anxiety; suspiciousness; panic attacks; chronic sleep impairment; nightmares; mild memory loss; hypervigilance; irritability; impaired judgment; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; suicidal ideation; impaired impulse control; paranoia; and poor self-esteem. The Board acknowledges that the Veteran had suicidal thoughts. As the United States Court of Appeals for Veterans Claims (CAVC) has affirmed, suicidal ideation does not require suicidal intent, a plan, or prepatory behavior. Bankhead, v. Shulkin, 29 Vet. App. 10, 19 (2017). The Board notes, suicidal ideation is a serious symptom. In Bankhead, the Court indicated that the Board must consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating. Further, the Court held that the presence of suicidal ideation alone might cause occupational and social impairment with deficiencies in most areas. Id. Given the Veteran’s suicidal ideation that has persisted throughout the period of the claim, the Board finds that an initial 70 percent rating is warranted. In light of the Court’s decision in Bankhead, and after having resolved all reasonable doubt in favor of the Veteran, the Board has determined that a 70 percent rating is warranted for the entire period on appeal. In this regard, the Board finds that due to the symptoms summarized above, including the Veteran’s reported suicidal thoughts, his service-connected PTSD most nearly approximated occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood during this period. In sum, the records show the Veteran received consistent mental health care throughout the period on appeal. Additionally, the evidence shows the Veteran had experienced several significant symptoms and impairments, which include: diminished memory, impaired impulse control, anxiety, significant relationship problems, chronic dysfunctional sleep, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, chronic mood impairments, and suicidal ideation. Throughout this period, the weight of the evidence supports a finding that the Veteran’s PTSD manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. However, the Board finds that the signs and symptoms associated with his psychiatric disabilities do not more nearly approximate total social and occupational impairment during this period. In this regard, for example, there is no evidence of delusions, homicidal ideations, or grossly inappropriate behavior. He had been able to perform activities of daily living and was competent to handle his own finances. Additionally, the evidence does not show the Veteran experienced memory impairments of such severity that he forgot names of close relatives, his own occupation, or his own name. In short, despite the Veteran’s symptoms, he had not exhibited the type of emotional and cognitive impairment reserved for a total rating. 38 C.F.R. § 4.130, DC 9411. Based on the foregoing, the totality of the evidence shows that the disability picture for the Veteran’s PTSD warranted a 70 percent rating for this period on appeal. However, the preponderance of the evidence is against the assignment of a higher, 100 percent, rating. 38 C.F.R. § 3.102. The Board has applied the benefit of the doubt where appropriate. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND TDIU Given the fact that the Veteran now meets the schedular criteria for a TDIU for the entire period on appeal, the Board finds that a retrospective medical opinion is necessary in order to assess the impact of the Veteran’s service-connected PTSD on his employability. The matters are REMANDED for the following action: Obtain a retrospective medical opinion from a qualified examiner, to comment on the occupational effects caused by the Veteran’s service-connected PTSD prior to his death. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following a review of the relevant records and lay statements, the examiner should comment on the Veteran’s ability to function in an occupational environment and describe the functional limitations associated with all the Veteran’s service-connected PTSD. The examiner should provide concrete examples of functional impairments caused by the Veteran’s service-connected PTSD, to include the medications taken, if any, for his PTSD. The types of impairments the examiner should address include, but are not limited to: impaired ability to interact socially, as well as problems with memory and concentration. The examiner must discuss and consider the Veteran’s competent lay statements made prior to his death. In addition, the examiner should comment on whether there is a 50 percent or better probability that the Veteran’s service-connected PTSD was sufficiently disabling to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.