Citation Nr: 21009986 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-12 683 DATE: February 23, 2021 ORDER A 70 percent disability rating for service-connected posttraumatic stress disorder (PTSD) for the initial rating period prior to September 24, 2019 is granted. A 100 percent disability rating for service-connected PTSD from September 25, 2019 is granted. REMANDED Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to September 24, 2019, the Veteran’s service-connected PTSD was manifested by occupational and social impairment with deficiencies in most areas. 2. From September 25, 2019, the Veteran’s service-connected PTSD was manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for a 70 percent disability rating, but no higher, for service-connected PTSD have been met for the initial rating period prior to September 24, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a 100 percent disability rating for service-connected PTSD have been met from September 25, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 2001 to July 2002 and December 2006 to November 2007. This case has a long procedural history. Most recently, in July 2019, the United States Court of Appeals for Veterans Claims (CAVC) on a Joint Motion for Remand (JMR) by the Veteran and the Department of Veterans Affairs (VA) vacated the February 2018 Board decision that denied benefits sought on appeal from a VA Regional Office (RO) March 2011 rating decision, and remanded the case back to the Board for compliance with the directives provided in the JMR. In January 2020, the Board remanded the case for further development. The development requested having been completed, the case is now appropriate for appellate review. The issue of a TDIU has been raised during the adjudicatory process of the underlying disability. As such, the issue of entitlement to a TDIU is part and parcel of the claim for benefits for the underlying disability, and the Board has proper jurisdiction over it. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Disability Ratings Disability ratings are determined by comparing the symptomatology manifested by a particular service-connected disability at issue with the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings assess the ability of the body as a whole, or a body system or organ, to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The Rating Schedule is a guide intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. Where the question is which of the two evaluations shall be applied, the higher evaluation is assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating is 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. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). 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). Evaluations for PTSD are assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). 1. A 70 percent disability rating for service-connected PTSD for the initial rating period prior to September 24, 2019 Here, the Veteran is in receipt of a 30 percent disability rating for his service-connected PTSD from September 30, 2010 to May 4, 2017, a 50 percent disability rating from May 5, 2017 to July 21, 2020, and a 100 percent disability rating from July 22, 2020. The Veteran asserts he is entitled to a 100 percent disability rating for the entire period on appeal. The issue in this appeal is whether the Veteran’s service-connected PTSD symptoms caused the level of impairment required for a disability rating of 30 percent or higher for the initial rating period prior May 5, 2017 and a disability rating of 50 percent or higher from May 5, 2017 to July 21, 2020. After reviewing all the lay and medical evidence of record and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence supports a 70 percent disability rating, but no higher, for the initial rating period prior to September 24, 2019. The evidence of record supporting a 70 percent disability rating includes symptoms of persistent suicidal thoughts with occasional plan, frequent dreams about people the Veteran would kill without an intention to act, periodic audio hallucinations, anxiety, depressed mood, sleep impairment, impaired judgment, poor insight, flat affect, panic attacks, mild paranoia, hopelessness, crying spells, obsessive and compulsive thought content, irritability, impaired impulse control (such as anger episodes), difficulty maintaining personal appearance and hygiene, suspiciousness, poor concentration, difficulty in establishing and maintaining effective work and social relationships, hypervigilant, and being isolative. See October 2010, November 2010, August 2013, November 2016, January 2017, and December 2018 VA treatment records; December 2010 VA examination; May 2017 VA examination. The Board notes that such symptoms would likely result in deficiencies in most areas, including work, family relations, judgment, thinking, and mood; thus, meeting the criteria for a 70 percent disability rating. The Board acknowledges that there is evidence against the grant of a 70 percent disability rating. The Veteran underwent a VA examination in December 2010 and May 2017. The December 2010 examiner did not determine the level of occupational and social impairment the Veteran’s service-connected PTSD symptoms caused. The May 2017 examiner opined the Veteran’s service-connected PTSD symptoms caused occupational and social impairment with occasional decrease in work efficiency. However, the May 2017 examiner did not consider that the Veteran had been fired twice due to anger within the past six months of the examination when reaching his conclusion. See November 2016 and January 2017 VA treatment records. Thus, the Board finds the May 2017 examiner’s opinion less probative. 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 at 19. 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, denied delusions, and denied hallucinations in VA treatment records and during the May 2017 VA examination. See April 2017, July 2017, and January 2018 VA treatment records. Taking a holistic view of the Veteran’s impairment by considering the evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. The Board finds a 70 percent disability rating, but no higher, is warranted for the initial rating period to September 24, 2019. The Veteran’s symptoms are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent disability rating for the initial rating period to September 24, 2019. See 38 C.F.R. § 4.126. 2. A 100 percent disability rating for service-connected PTSD from September 25, 2019 The September 25, 2019 VA treatment records show the Veteran has “chronic passive SI, with possible plans of shooting himself, but he does not own guns.” 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 at 19. The September 25, 2019 VA treatment records also showed the Veteran experiencing audio hallucinations saying, “you need to do this” but they do not say to hurt himself or others. In a March 2020 VA treatment records, the Veteran reported audio hallucinations that commanded him to hurt others. The Veteran underwent a VA examination in July 2020. The examiner diagnosed the Veteran with PTSD, severe major depressive disorder with psychotic features and anxious distress, and moderate alcohol use disorder. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. The Veteran reported that he has physical altercations at least once a month, which is considered grossly inappropriate behavior. The examiner noted that the Veteran lost five jobs in the past three years because of his temper and he has difficulty being around people. The examiner reported the Veteran’s symptoms included, among other things, suicide ideation and persistent danger of hurting self or others. The examiner noted that the Veteran has thoughts of suicide “all the time.” The examiner described how the Veteran planned on driving his car off a bridge, but could not find a bridge. The July 2020 VA examination confirmed the Veteran’s symptoms described in the September 25, 2019 VA treatment record. Taking a holistic view, since the September 25, 2019 VA treatment record and resolving reasonable doubt in favor of the Veteran, the Board finds the severity, frequency, and duration of the Veteran’s symptoms more nearly approximate total social and occupational impairment. The Veteran’s symptoms include grossly inappropriate behavior, persistent danger of hurting self or others, and persistent audio hallucinations. Thus, the Board finds the maximum 100 percent disability rating is warranted from September 25, 2019. REASONS FOR REMAND Entitlement to TDIU is remanded As noted above, the issue of entitlement to a TDIU has been raised in the course of this appeal. There is insufficient information in the record to adjudicate the TDIU claim. The RO should conduct proper development and consideration of the TDIU claim in the first instance, to include providing the Veteran with the appropriate forms necessary for a TDIU claim (e.g., VA Form 21-8940, etc.). The appeal period is from September 30, 2010, the date of service connection for PTSD. The matters are REMANDED for the following action: Provide to the Veteran all required notices and claim forms in response to the claim for TDIU. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, Associate Counsel 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.