Citation Nr: 21009166 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 18-07 243 DATE: February 19, 2021 ORDER Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD) from August 6, 2013 to October 22, 2019 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 70 percent for PTSD from August 6, 2013 is denied. FINDING OF FACT 1. The service-connected PTSD from August 6, 2013 to October 22, 2019, more nearly approximates occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood 2. From August 6, 2013, the service-connected PTSD does not more nearly approximate the criteria for total occupational and social impairment. CONCLUSION OF LAW 1. The criteria for an initial 70 percent rating for PTSD from August 6, 2013 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for rating in excess of 70 percent from August 6, 2013 for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from February 1989 to June 1989, from March 2004 to August 2004, and from December 2004 to May 2005, as well as service in the Army National Guard from October 2001 to April 2002. The issues on appeal arose from an August 2015 rating decision. In September 2019, the Board granted a 50 percent rating for the Veteran’s PTSD, which the Veteran appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In August 2020, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Partial Remand (JMPR). As a final note, in the September 2019 decision, the Board also remanded the claim of entitlement to an earlier effective date for PTSD to the agency of original jurisdiction (AOJ) for further development. After accomplishing further development, in a June 2020 rating decision, the AOJ granted an earlier effective date of August 6, 2013, for PTSD. The Veteran, through his attorney, expressed his satisfaction with the new effective date for PTSD via a June 2020 VA Form 27-0820. As such, the Board finds that the claim of entitlement to an earlier effective date for the grant of service connection for PTSD is resolved. The Board notes that the record reasonably raises the question of whether the Veteran is unemployable due to his service-connected PTSD, and as such, part and parcel to the claim is whether a total disability rating based on individual unemployability (TDIU) is warranted. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In this case, in August 2019 correspondence by the Veteran’s attorney, the Veteran indicated that he wished to withdraw the TDIU issue from appeal. Nonetheless, in a July 2020 rating decision, the AOJ granted the Veteran a TDIU with an effective date of October 22, 2019. The Veteran has not since expressed dissatisfaction with the effective date applied or otherwise with the determination. The Board is aware of the Court’s opinions in Payne and Harper, but given that the Veteran’s representative specifically indicated prior to the July 2020 rating action that the Veteran was not pursuing a TDIU, and as neither the Veteran nor the representative has, since the July 2020 rating action, suggested that they are now interested in pursuing a TDIU (including for an earlier period), the Board finds that Payne and Harper are inapplicable under the facts of this case. If the Veteran does change his mind as to seeking a TDIU for an earlier period, and the Board does encourage him to do so, he should inform VA of this at his earliest convenience. At this point, however, given then preceding discussion, the Board concludes that the TDIU issue is not before the Board at this time. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § § 4.3. A veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In initial rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. When all the evidence is assembled, a determination will be made on the claim. Reasonable doubt will be resolved in favor of the Veteran. If there is a preponderance of the evidence against the claim, the claim will be denied. If the evidence supports the claim or is in relative equipoise, the Veteran will prevail. 38 U.S.C. § 5107 (b); 38 C.F.R. § §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Issues 1-2. Entitlement to an initial rating higher than 50 percent for PTSD from August 6, 2013 to October 22, 2019; and, entitlement to an initial rating higher than 70 percent for PTSD from August 6, 2013. The Veteran’s service-connected PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Codes 9411. Under these criteria, A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is 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; memory loss for names of close relatives, own occupation, or own name. In addition, when evaluating a mental disorder, the rating agency shall 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 rating agency shall 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 the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes, with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), that ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. For the appeal period dating from August 6, 2013 the pertinent evidence of record consists of lay statements from the Veteran and a former spouse, VA treatment records, an August 2015 VA examination, a December 2018 private medical opinion, and a July 2020 VA examination. In his November 2013 VA Form 21-0781a, the Veteran stated that due to excessive absences from work, he was dropped down to part-time employment and struggled to deal with colleagues. He further reported panic attacks without any identifiable cause. When informed of the death of a family member or friend, he avoids everyone and everything, and only leaving his house for necessities such as work, doctors’ visits, etc. He also avoids death in several other capacities, such as his father’s home-based mortuary, socialization with members from his old unit, and the funerals of friends and family members. In her own December 2013 statement, the Veteran’s then-current wife, C.U., gave more context to the Veteran’s symptomatology. Specifically, she stated that the Veteran has a fear of leaving home because he fears something bad will happen to him. This fear also occurs when he has to go to work, and he would often find any reason not to go in. Over the previous four months, the veteran accumulated twenty-six absences. The Veteran would also become extremely anxious (sweats, shakes, wide eyes) when in a crowded area. Due to this fear, the Veteran had only taken two family vacations, three mall visits, and three visits to residences of other friends in the previous seven years. Additionally, the Veteran as prone to instances of road rage when in the car. At the time of the August 2015 VA examination, the Veteran reported a depressed mood, difficulty sleeping, panic attacks multiple times a week, avoidance of crowds, issues with memory and concentration, irritability, and anger. The Veteran also reported being recently divorced, and that he was unemployed after returning home from a long-term job overseas and losing his security clearance. He denied suicidal or homicidal ideations, delusions, and hallucination. However, he stated that he could not hurt himself because he was on suicide watch with his wife. The examiner indicated that the Veteran was casually dressed in good hygiene, and presented with depressed mood, anger, and irritable effect. The examiner also indicated that the Veteran demonstrated good concentration and a fair level of insight. The Veteran’s objective symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, and an inability to establish and maintain effective relationships. He was noted to be capable of managing his financial affairs. The examiner also noted that based on the Veteran's report, he has done well in his job positions, has gotten along well with his colleagues, and has been able to maintain employment. Although he reported a good relationship with his son and grandson, the Veteran reported issues with his soon to be former wife, sister-in-law, brother, and mother. Ultimately, the examiner indicated that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. As part of his September 2015 notice of disagreement (NOD), the Veteran reported that doctors have told him that he should not be working in his mental state. His then-current VA psychologist also recommended counseling five days a week, but he has avoided it because he stays in his home and avoids as much human contact as possible. While he is home, feelings of worthless overwhelm him all day as he loses track of time. In his May 2017 correspondence, the Veteran also explained that he preferred working overseas because he was able to keep to himself and not speak with anyone. In her November 2017 correspondence, the Veteran’s now ex-wife, C.U., gave more examples of the Veteran’s behavior during their marriage. She stated that the Veteran has no impulse control and a lot of it resulted in their financial ruin. For example, he started a business that eventually failed because his depression kept him home. The Veteran also bought a timeshare and filed for bankruptcy without telling C.U. She also pointed out instances of his obsessive behavior. Sometimes, the Veteran would write repetitive lists and go through a 10-pack of notebooks in a week. On other occasions, the Veteran would often be in the same place that she left him when she came home from work. Further, the Veteran would often shut down in the face of problems. C.U. went on to admit that she left the marriage due the Veteran’s symptoms. In a follow-up December 2017 statement, the Veteran reported that somedays, he does not take a shower unless he has somewhere to go. Even when he does leave the house for errands, he goes in the during the midday or late night to avoid crowds. During such outings, his irritability sometimes caused him to verbally lash out at family members and members of the public. He also confessed that he contemplated suicide but would not hurt himself. As for familial relationships, he reported that these relationships are strained because they always want something from him. The Veteran also submitted a December 2018 private medical opinion from Dr. H. H., a licensed psychologist and clinical neuropsychologist. During the evaluation, the Veteran reported a history of several overseas jobs, but that he was unemployed and undergoing physical therapy due to several non-service-connected medical conditions. He denied homicidal ideations, delusions, and hallucinations. While the Veteran also denied that he would ever kill himself, he did not deny that he would rather end things. Dr. H. H. noted the Veteran’s symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships; noting that each of the symptoms were moderate to severe, and occurred regularly or daily. Ultimately, Dr. H. H. indicated that the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity; indicating that the Veteran reached the current level of impairment in 2013. On July 2020 VA examination, the Veteran reported depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened effect, disturbances of motivation and mood, inability to establish and maintain effective relationships, and difficulty adapting to stressful circumstances. He was noted to appear appropriately dressed, groomed, and in good general health. Eye contact was appropriate, and rapport was established and maintained with no difficulty. The Veteran’s level of personal insight appeared to be fair and his social judgement was within normal limits. While the Veteran is fully capable of managing funds in his own best interest, the examiner went on to note that his ability to retain instructions, sustain concentration, accept supervision, be flexible in the work setting is considered moderately impaired. His ability to respond appropriately to others, control impulses, and accept criticism is considered markedly impaired while his ability to work in groups is considered profoundly impaired. Further, the examiner indicated that the Veteran experienced occupational and social impairment with reduced reliability and productivity. The Veteran’s VA treatment records largely mirror the above-described symptoms. Specifically, these records indicate that he suffered from social isolation, insomnia, increased tobacco use, increased alcohol consumption, irritability, hypervigilance, exaggerated startle responses, avoidance of thoughts and experiences related to the military, panic attacks, and lack of appetite. He has denied suicidal or homicidal ideations, delusions, and hallucination. Additionally, he has consistently been noted to appear appropriately dressed and groomed, with his insight, judgment, affect, and memory all noted as normal. His VA psychologists have also recommended therapy throughout the appeal period. Based on the evidence of record, the overall symptomatology during the entire appeal period sporadically met the criteria for both a 50 percent rating and a 70 percent rating. As such, and affording the benefit of the doubt in the Veteran’s favor, the Board finds that a 70 percent rating for this entire appeal period is warranted. Here, the Veteran has contemplated suicide on a few occasions and hinted that circumstances would be better if he was not around. Although the Veteran’s speech appeared to be intact, his near-continuous depressed mood, panic attacks, anxiousness, and irritability left him afraid to leave the house for work, socialization with friends and family, or errands. Not only did the Veteran’s irritability and impulse control lead to public outbursts but it also led him to some risky financial decisions without consulting his wife. Although the Veteran presented well-groomed for VA visits, he admittedly only showered when he had somewhere to go. Moreover, the Veteran routinely had memory impairment as well as difficulty in adapting to stressful circumstances and establishing or maintaining effective work and social relationships. At no point during the appeal period has the Veteran's overall symptomatology more nearly approximated the criteria for a 100 percent rating as that rating requires evidence of total occupational and social impairment. Neither the lay nor medical evidence of record shows that the Veteran suffered from hallucinations or engaged in grossly inappropriate or dangerous behavior. Throughout the appeal period he was spatially oriented and was able to remember pertinent personal information, such as his name or the names of relatives. Thus, the evidence does not more nearly approximate the criteria for total occupation and social impairment from October 6, 2013. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Spann, 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.