Citation Nr: 21008257 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 19-08 797A DATE: February 12, 2021 ORDER Entitlement to a rating of 70 percent, but not higher, for the entire period on appeal for posttraumatic stress disorder (PTSD) is granted. REMANDED The issue of entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire period on appeal, the occupational and social impairment from the Veteran’s PTSD has been manifested by deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1970 to February 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board. In an August 2019 decision, the Board denied the claim for an increased rating for the Veteran’s service-connected PTSD. The Board also held that the issue of TDIU was not raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court granted a Joint Motion of the parties, vacated the Board’s decision, and remanded the case to the Board for adjudication consistent with the Joint Motion. This matter has now been returned to the Board for further appellate consideration. Increased Rating – PTSD The Veteran has asserted that his service-connected PTSD with secondary alcohol use disorder warrants a higher rating as his symptoms are worse than those contemplated by the currently assigned rating. The record demonstrates that the was afforded a VA examination in September 2018. The examiner noted that the Veteran experienced the following symptoms related to his PTSD: depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. In addition, in assessing the diagnostic criteria for the disability, the examiner noted that the Veteran experienced the following pertinent symptoms (among others): recurrent, involuntary, and intrusive distressing memories of the traumatic event; intense or prolonged psychological distress; a persistent negative emotional state; and irritable behavior and angry outbursts. The Veteran’s hygiene, speech, and psychomotor behavior were normal, with memory, concentration, and attention in-tact. Insight and judgment were noted as good, and thought processes were logical and goal directed. The examiner found that irritability and mood swings caused mild social issues, but also recorded that the Veteran maintained friendships with others who he socialized with every other week. It was also noted that the Veteran reported continuing to work on a part-time basis after having been self-employed for 47 years owning a general contracting construction company. His work included doing projects such as building cabinets and furniture approximately 20 hours a week. Overall, the examiner opined that the Veteran’s disability resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms are otherwise controlled by medication. Of record is an October 2018 report from the Veteran’s readjustment counselor. That report indicated that the Veteran had been undergoing weekly sessions with the counselor for several months for treatment of his PTSD symptoms. The Board notes that the counselor who authored the report has not indicated credentials for any of the following: (1) board-certified or board-eligible psychiatrist; (2) licensed doctorate-level psychologist; or (3) the following other mental health professionals, under the close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist: (a) doctorate-level mental health providers, (b) psychiatry residents, and (c) clinical or counseling psychologists completing a one-year internship or residency. Although the counselor is not qualified to provide or confirm a clinical diagnosis, the Board finds that the report offers probative evidence of the Veteran’s symptoms as the counselor observed the Veteran at least once per week over the course of several months. In addition, the report reflects an accurate recitation of the facts of the Veteran’s personal, military, and medical history. The counselor’s report conveyed that the Veteran experienced the following PTSD related symptoms: constant generalized anxiety, several panic attack incidents per week, sleep disturbance, anhedonia, inability to stay on task, emotional alienation, relational disturbance, dissociative intrusive nightmares and daymares, agoraphobia, rapid cycle mood swings, road rage, unprovoked anger, emotional instability, and self-medication through use of alcohol. The Veteran’s long-term and flash memory were noted as being in-tact and he consistently presented with good hygiene. It was specially noted that the Veteran experienced a pervasive sense of generalized anxiety, which was often reflected in his countenance. The counselor further reported that although the Veteran’s affect has been consistently fair to good, occasionally he presented with flattened affect. That, as noted by the counselor, along with the Veteran’s sardonic presentation at times, reflects his persistent depressive state and dissociative aspects of his PTSD condition. In his opinion, based upon his significant ongoing interactions with the Veteran, the counselor found that the Veteran’s symptoms markedly compromised his social abilities, including the ability to maintain personal and professional relationships. The Veteran also underwent a VA examination in May 2019. The examiner confirmed a continuing diagnosis of PTSD as well as secondary alcohol use disorder. The examiner noted that the Veteran experienced the following symptoms related to his PTSD: intrusive symptoms associated with trauma, avoidance of trauma-related stimuli, alterations in arousal and reactivity associated with trauma, negative alterations in cognition and mood, and consuming alcohol in excess as self-medication. The Veteran reported frequently “shutting down” and isolating at home with bouts of anger and rage directed towards his spouse or “anything” nearby, occurring several times a week. He did, however, also report maintaining good relationships with his children and grandchildren, but also reported that he would warn them to stay away from him at times due to his symptoms. The Veteran further reported being social with friends and engaging in recreational activities. He also stated that he experienced daily intrusive memories and flashbacks about once a week. He reported feeling emotionally numb and detached much of the time, with feelings of anger manifesting through outbursts. It was also noted that the Veteran experienced mild memory loss, suspiciousness, anxiety, impaired impulse control, such as unprovoked irritability with periods of violence, and chronic sleep impairment. The May 2019 examiner provided the same conclusion as the examiner in September 2018, that the Veteran’s disability results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms are otherwise controlled by medication. In support of his claim, the Veteran also submitted a written statement in December 2020, expressing that his PTSD symptoms prevented him from working because he was unable to interact with other people. He also conveyed that his symptoms had caused interpersonal relationship problems with his wife. In a written statement from September 2018, the Veteran’s wife confirmed witnessing the symptoms as they were reported above and detailed that the Veteran had become increasingly irritable, moody, jumpy, hateful, depressed, forgetful, and listless. Based upon the foregoing, the Board finds that the criteria for a rating of 70 percent for PTSD are met for the entire period on appeal. Here, the cumulative evidence demonstrates that the Veteran’s symptoms have interfered with his familial and professional relationships, ability to work, and have also caused deficiencies in the Veteran’s judgment and mood. Much credit is given to the report authored by the Veteran’s counselor, who had ongoing contact with the Veteran over the course of several months. In addition, the VA examination reports confirm many of the same symptoms, in addition to impaired impulse control and mild memory loss. The Board acknowledges that the Veteran’s symptoms also include weekly incidents of panic attacks and heightened anxiety, difficulty in maintaining effective work relationships, disturbed motivation and mood, emotional instability, and flattened affect, along with those outlined above. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board acknowledges that the results of the VA examinations, the symptoms described in the medical records, and the lay statements of record do not indicate that the Veteran has experienced all of the symptoms associated with a 70 percent rating for PTSD. Therefore, a finding that there is occupational and social impairment with deficiencies in most areas is sufficient to warrant a 70 percent even though all the specific symptoms listed for 70 percent rating are not manifested. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Consideration has been given to assigning a higher rating. The Board is mindful However, there is no indication from the record that the Veteran has had total occupational and social impairment as a result of his PTSD. In this regard, the Veteran has been noted to maintain relationships with his wife, children, and grandchildren. Also, the Veteran has reported that he remains socially active with friends on a regular basis. He has been shown to be able to maintain his hygiene and has not exhibited difficulty with performing activities of daily living. He does not present with persistent delusions or hallucinations and is not shown to be a persistent danger to himself or others. His speech has not been impaired, and his thought processes and thought content have not been illogical. While the Veteran has been noted to have impulse control with unprovoked periods of violence, there is no indication from the record that the Veteran has been considered a persistent danger to himself or others. Further, while the Veteran has been noted to experience mild memory loss, those symptoms have not been significant. As such, the Board finds that a rating in excess of 70 percent is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Furthermore, the Board does not find that the symptoms reported throughout the period on appeal are manifestly different, or more severe, during any period of time. Therefore, the Board finds that the evidence does not show that the Veteran’s PTSD is manifested by total occupational and social impairment, and a rating in excess of 70 percent is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). REASONS FOR REMAND Entitlement to TDIU The Veteran is seeking entitlement to a TDIU based upon his service-connected disabilities. An express claim was not filed by the Veteran, rather, it is argued that the issue is raised by the facts in the record. See Rice, 22 Vet. App. at 453. In this regard, the Board agrees but also finds that additional development is necessary to properly adjudicate the issue. Specifically, in September 2018, the Veteran reported that he continued to work approximately 20 hours per week. The income from that employment is unknown, it is also unclear, based upon the various reports, whether that employment has been sustained or fully terminated. In addition, in the decision above, the Board has granted an increased rating for the Veteran’s PTSD disability from 30 percent to 70 percent, thereby impacting the consideration of TDIU on a schedular basis. Accordingly, additional development must be undertaken for the full adjudication of this issue. This matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Conduct any additional development determined to be warranted to adjudicate the issue of entitlement to a TDIU. 3. Then, adjudicate the issue of entitlement to a TDIU. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, 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.