Citation Nr: 21011052 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-50 239 DATE: February 26, 2021 ORDER Entitlement to a rating of 70 percent for posttraumatic stress disorder (PTSD) with mild major depressive disorder is granted. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s PTSD with mild major depressive disorder has caused occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. The evidence is at least in equipoise as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for a 70 percent rating for the Veteran’s psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 70 percent for the Veteran’s PTSD with mild major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1967 to May 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision and October 2017 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office. In March 2019, the Board denied the Veteran’s claims. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Partial Remand filed by the parties to the appeal, thereby vacating the Board’s March 2019 decision insofar as it denied an increased rating for PTSD and entitlement to TDIU. The Court remanded those matters to the Board for readjudication. 1. Entitlement to a 70 percent rating The Veteran is currently in receipt of a 30 percent disability rating for his service-connected PTSD and mild major depressive order (hereinafter “PTSD” or “psychiatric disability”) under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The Veteran seeks a 70 percent rating. See December 2020 appellate brief. Here, the Board notes that the appellate period began on September 13, 2015—one year prior to the date of claim. 38 C.F.R. § 3.400(o)(2). Under DC 9411, a 50 percent rating is warranted if the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted if the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships. A 100 percent rating is warranted if the disorder is manifested by 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. Turning to evidence of record, during a December 2015 VA mental health visit, the Veteran reported that he was feeling “excellent.” Mental status examination showed no deficits in appearance, behavior, motor skills, speech, mood, affect, thought content, thought process, percent, cognition, orientation, judgment, or insight. The Veteran denied suicidal and homicidal ideations. He was living in a senior housing facility and reported a positive relationship with his ex-wife. At a March 2016 VA mental health visit, the Veteran reported isolation, but the clinician pinpointed cost limitations as the reason for decreased social interaction. The Veteran described sleep impairment. Mental status examination showed no deficits in appearance, behavior, motor skills, speech, mood, affect, thought content, thought process, percent, cognition, orientation, judgment, or insight. In May 2016, the Veteran presented for a VA mental health assessment. His provider noted the Veteran’s recent hospitalization for non-service-connected physical maladies. The Veteran reported social isolation and sleep complaints. Upon mental status examination, he was found to be casually groomed; his behavior and motor skills were unremarkable; his speech was clear, coherent, spontaneous, and responsive; his mood was euthymic, and affect was mood appropriate aside from a slightly brittle edge. The Veteran’s thought content was reality based; thought processes were linear, coherent, and without paranoid ideation or delusions. He reported no auditory or visual hallucinations. He was oriented to all spheres. The Veteran exhibited normal memory, concentration, and focus. Judgment was intact and insight was reasonable. The clinician remarked that the burden of PTSD symptoms was manageable. During an August 2016 VA mental health assessment, the Veteran told the clinician that he was “feel[ing] great.” He denied suicidal ideation and reported that he was sleeping well. The Veteran’s mental status examination results and the clinician’s impressions mirrored those charted at the May 2016 assessment. In October 2016, the Veteran was afforded a VA examination to assess the severity of his service-connected PTSD and mild major depressive disorder. It was noted that the Veteran’s PTSD remained chronic, however his major depressive disorder was in remission. The VA examiner noted that the Veteran was actively experiencing anxiety, chronic sleep impairment, and disturbances of motivation and mood. The Veteran reported daily intrusive memories and ‘visions’ of [Vietnam] with associated psychological and physiological distress. He reportedly divorced his wife in 2014 because she could no longer deal with his Vietnam trauma. He denied having any close friends. The Veteran reported good relationships with his children, steady housing, and independence with activities of daily living. Upon mental status examination, the Veteran was noted as being appropriately groomed and dressed. He was alert and fully oriented; no gross motor abnormalities were observed. Speech was normal. Thoughts were logical and coherent. The Veteran described his mood as “negative;” his affect was mildly anxious and ranged from anxious to sad to angry, congruent with his expressed thoughts. Cognition was intact for purposes of the evaluation but was not formally assessed. During a February 2017 VA mental health examination, the Veteran denied suicidal ideations and reported a good relationship with his children. He reported great sleep with medication. Mental status examination showed no deficits and largely mirrored the findings recorded at the August 2016 assessment. The Veteran indicated that he had also decided to try online dating. In May 2017, the Veteran reported dizziness and shortness of breath. He claimed to have retained an attorney because of a dental infection allegedly related to heart valve abnormalities. The Veteran denied suicidal ideations and was socializing more with his neighbors. He stated that his life was boring. He helped his daughter with her dogs, was going to a meeting to learn how to build boats, and was thinking about volunteering to help teach kids how to use hand tools. Upon mental status examination, the Veteran’s appearance was well-groomed. His behavior and motor skills were unremarkable. His speech was normal. The Veteran’s mood was euthymic, and affect was mood appropriate. Thought content was reality based and thought processes were linear, coherent, and without paranoid ideation or delusions. The Veteran did not report auditory or visual hallucinations. He was oriented to all spheres. He exhibited normal memory, concentration, and focus. Judgment was intact and insight was reasonable. The clinician reiterated that the Veteran was doing well with a euthymic mood, he had sustained remission of depressive symptoms, was managing the burden of his PTSD symptoms, and was still recovering from mitral valve surgery with complaints of fatigue. At an August 2017 VA mental health visit, the Veteran reported that he had a new service dog and his quality of life had improved. He denied suicidal ideations and was socializing with neighbors. He indicated he was sleeping well and would volunteer for coastal resource cleaning. Mental status examination showed no deficits in appearance, behavior, motor skills, speech, mood, affect, thought content, thought process, percent, cognition, orientation, judgment, or insight. In a September 2017 affidavit, the Veteran explained a history of panic attacks, nightmares, and flashbacks following his separation from military service. His relationship with his wife was estranged. He had a short temper and demonstrated social isolation and hypervigilance. See September 2017 affidavit. In August 2018, the Veteran was seen at the VA emergency department. He reported that he had seen his psychiatrist earlier in the morning “due to depression and suicidal ideation” and that he would drive to VA and be “admitted on the psych ward.” During his stay, he described specific instances of hopelessness, crying, feelings of resentment, lack of appetite, poor sleep, and nightmares. The Veteran described himself as “a dangerous situation” and his desire to end his own life by gunshot wound. Following his admission to the inpatient psychiatric unit, the Veteran was determined to be a high risk for suicide. See August 2018 VA suicide prevention program consult; see also August 2018 mental health note. Thereafter, he was evaluated regularly based on his expressed desires to harm himself. See, e.g., September 2018 mental health notes; October 2018 suicide prevention case management. By February 2019, despite several evaluations in which he denied suicidal ideation, he was still categorized as someone at high risk. See VA mental health patient record flag. In September 2020 the Veteran underwent an independent medical evaluation with a private psychologist. The Veteran reported difficulties with “being around people while running errands or shopping, but he [could] get what he need[ed].” Symptoms included depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; suicidal ideation; and persistent danger of hurting self or others. Upon mental status examination, the Veteran was appropriately dressed and groomed. No abnormalities in psychomotor activity were observed. His speech was normal. He appeared mildly anxious, with a full range of affect. His thought process was logical and linear, with no abnormalities in content. The Veteran’s attention, concentration, and memory were adequate. His insight and judgment were also adequate. Based on the foregoing, the Board finds that a 70 percent evaluation is warranted for the Veteran’s psychiatric disability throughout the period on appeal. The Court has held that the language of 38 C.F.R. § 4.130 indicates that “the presence of suicidal ideation alone, that is, a Veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Although the Veteran did not report suicidal ideation until August 2018, review of his treatment records suggests that he frequently masked and downplayed his more serious psychiatric symptoms. The Board cannot engage in speculation regarding the onset date and abatement of the Veteran’s suicidal ideation. He has finally decided to be more transparent about his mental health concerns and his need a higher level of care. Moreover, the September 2020 VA examiner noted symptoms of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. These symptoms are also associated with a 70 percent rating. With that said, the preponderance of the evidence is against the assignment of a schedular rating in excess of 70 percent. Although the September 2020 examiner found that the Veteran was in persistent danger of hurting self or others (a symptom associated with a 100 percent rating), the Veteran has not exhibited any of the other symptoms associated with a 100 percent rating. Indeed, no examiner has concluded that the Veteran’s psychiatric disability manifested in gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Given the fact that most evidence aligns with a 70 percent rating for psychiatric disability, the Board finds that a rating in excess of 70 percent must be denied. Pursuant to Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Board has considered the applicability of staged ratings. However, in this case, the evidence does not support the assignment of another rating for any portion of the period on appeal. 2. Entitlement to a TDIU TDIU is warranted where the evidence of record shows that a Veteran is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, as a result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In general, if there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). By this decision, the Veteran is in receipt of a 70 percent rating for PTSD and therefore meets the criteria for a schedular TDIU. In this case, the Veteran has demonstrated behaviors of alienation and isolation, making it difficult to interact in a worklike setting. Specifically, the growing stress of customer interaction has prevented him from working since 2009. Although he occasionally assisted his ex-wife in the management of her business, those efforts resulted in volatile confrontations. During the September 2020 private evaluation, the Veteran reported that at previous jobs he “was always a jerk, too inflexible, and no one wanted to work with [him] because [he] was too demanding.” He was self-employed for several years until he went to work for his wife, but he “still had to stay away from people and even [his wife] would get on [him] for how [he] treated people.” An accompanying Residual Functional Capacity Evaluation noted that the Veteran would have to miss three or more days of work per month and would also have to leave early from work three or more days per month. The examining psychologist opined that it was more likely than not that the Veteran had been unable to secure or follow substantially gainful employment as a result of his psychiatric symptoms. Based on the foregoing, the Board finds that a TDIU is warranted. The Veteran is not working, and he meets the schedular criteria for entitlement to a TDIU. While there is certainly some evidence against the claim (such as earlier suggesting remission of psychiatric disability symptoms), it is clear that the Veteran has had significant occupational impairment due to his service-connected psychiatric disability. The final determination with respect to a Veteran’s entitlement to a TDIU is an adjudicatory, rather than a medical, function. Under the circumstances, in light of the totality of the record, and giving due consideration to the Veteran’s description of the functional effects of his service-connected psychiatric disability as it relates to his level of education and prior occupational experience, the Board is persuaded that the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disability. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The appeal is granted. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.