Citation Nr: 21011338 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-19 011 DATE: March 1, 2021 ORDER Entitlement to an initial evaluation of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) from October 1, 2013 to September 20, 2020, is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU), prior to January 9, 2017, is remanded. FINDING OF FACT From October 1, 2013, to September 20, 2020, the Veteran’s PTSD has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking and mood. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for a rating of 70 percent, but no higher, from October 1, 2013, to September 20, 2020, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1999 to November 2003 and from July 2012 to September 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified before the undersigned Veterans Law Judge during a July 2015 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This matter was previously before the Board in September 2018 and April 2020. The matter has returned to the Board for adjudication. Entitlement to an initial evaluation of 70 percent for PTSD from October 1, 2013 to September 20, 2020 The Veteran contends that he is entitled to a higher rating than the currently assigned 50 percent evaluation from October 1, 2013 to September 20, 2020. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Parts 4. When rating a service-connected disability, the entire history must be considered. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings 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. The Board must consider entitlement to “staged” ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability for the time period beginning one year before filing the claim until the VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD is evaluated under Diagnostic Code 9411 under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. By way of history, in a September 2014 rating decision, the Veteran was granted a 30 percent rating from October 1, 2013, the date after his discharge from active duty, for specified trauma and stressor-related disorder. The Veteran’s psychiatric condition was increased to 50 percent from October 1, 2013 by way of a May 2015 rating decision. In an October 2020 rating decision, the RO increased the evaluation to 100 percent, effective September 21, 2020, the date of the VA examination that showed that an increase was warranted. The psychiatric diagnosis was also changed to PTSD as the examiner noted that the prior diagnosis of specified trauma and stressor-related disorder was incorrect, and the previous evaluator indicated that the Veteran endorsed all necessary criteria for PTSD at that time but did not diagnosis it. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned for 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; 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 where 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. The maximum 100 percent rating is warranted where 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; memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and a 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. In addition, 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). Further, ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “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 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). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017) the Court held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence of record, a January 2014 VA treatment record documented that the Veteran had no evidence at all of hopelessness or suicidal ideation but had anxiety spells and his sleep is only fair, perhaps about five hours a night on average, sometimes with nightmares. The Veteran reported that he remained in contact with his family but there were times when he isolated and pulled away from them. He found it very difficult to talk to his mom about what was going on with him. See February 2014 VA treatment record. The Veteran also stated that he noticed difficulty in concentration, short attention span, difficulty to stay focused, and gets easily distracted during communication. He denied suicidal thoughts. See March 2014 VA treatment record. The Veteran was examined for his psychiatric disability by the VA in July 2014 and he was diagnosed with specified trauma and stressor-related disorder. The Veteran’s occupational and social impairment was best summarized by the examiner as 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 controlled by medication. During the time of the examination, the Veteran was with his wife but was trying to divorce. The Veteran reported a close and loving relationship with his children and saw them every weekend. He also stated that he talks with his sister in Phoenix regularly and see his mother every two weeks. He reported he dates occasionally and has a number of friends who he sees regularly. He attends church every weekend and has friends there and is a member of a bible study group that he enjoys. The Veteran reported that he enjoys going out for beer regularly with his friends at a local tavern. The Veteran had a DUI in May 2014 and lost his job and was currently looking for work. The Veteran’s symptoms included anxiety and chronic sleep impairment. Upon examination, he was fully oriented with good memory and concentration. He was dressed casually with good hygiene and grooming. He maintained good eye contact and established good interpersonal rapport. His mood was free of any significant anxiety, anger or depression. Affect was appropriate to content. His speech was fluent, of normal rate and well-articulated. Judgment, insight and comprehension were in the average range or better. There were no cognitive deficits noted. The VA examiner remarked that the Veteran’s symptoms were seen to be mild and to cause mild occupational and social dysfunction. A September 2014 VA treatment record noted that the Veteran said he has been using drinking to avoid a lot of his issues which he said he knows he has and has affected his marriage, relationships, and work. The Veteran submitted a statement in September 2014, and he noted that after he returned from combat around October 2003, he had serious anger issues and lack of communication with civilians. He no longer cared for himself and started to have nightmares. He stayed distant from friends and family and continued to feel disconnected from his family, friends, and home. The Veteran’s best friend, A. M., submitted a statement in September 2014 that attested to the Veteran becoming different as of January 2004 after his deployment. A.M. stated that most of the time, the Veteran is very distant and despondent. He knows that the Veteran was struggling inside and constantly fighting an internal battle with himself. Another friend, W.M., submitted a statement on behalf of the Veteran. He stated that the Veteran slept on his couch from December 2003 to December 2004. He had violent nightmares and drank alcohol for the express purpose of black out and numbing his distress and intrusive thoughts of combat. W.M. also noted that the Veteran had rage and hair-trigger temper that was constant. He stated that the Veteran seemed as if he was unable to focus his concentration for any significant length of time. He was unable to trust no one and therefore, unable to form any long-term relationships. In December 2014, the Veteran reported having downward spiral sometimes. He felt depressed and anxious. He does not sleep well at night and sleeps four to five hours at night. He says that his interest in down, but he has interest in getting better. His energy and concentration are down. He admitted to being irritable and admitted to suicidal ideation crossing his mind in the past, but he never had a suicidal plan or attempt. See December 2014 VA treatment record. In a May 2015 visit to the VA Medical Center, the Veteran denied any suicidal or homicidal ideations, gestures, or attempts. The Veteran’s mother submitted a statement in May 2015 concerning the Veteran. She stated that before returning from Iraq, he was very outgoing and close to his family and friends. After his return, he became a very different man and was not able to trust anyone. She stated he had short term memory loss and does not seem to get much sleep. She stated that he seems to forget names of family and tasks he needs to complete for the day. In a June 2015 VA treatment record, the Veteran reported anxiety and depression, but did not have hypervigilance, nightmares, suicidal ideation, or excessive mood swings. He described his current mood as happy and denied any sadness. He was pleasant and cooperative and denied homicidal ideations, hallucinations, and paranoia. He also reported that when traveling, he has noticed his hypervigilance in public. In July 2015, the Veteran’s former employer, E.W., submitted a statement that he knew the Veteran since January 2004 and had offered him a job and a place to live after returning from his deployment. E.W. noticed that the Veteran had signs of depression, anger management issues, and was always hypervigilant. He stated that the Veteran has come a long way with his issues and seems to be facing them head on as opposed to denying and suppressing them as before. A September 2015 VA treatment record shows that the Veteran was taken off one of his medications cold turkey and had thoughts of death, but he had no plan or intent. The Veteran stated that he is maintaining visitation with his children and a relationship with a new lady was growing. He did not have suicidal concerns. See January 2016 VA treatment record. In March 2017, the Veteran stated that he is not suicidal or homicidal but stated that his relationships are breaking up. See March 2017 VA treatment record. The Veteran did not have any suicidal thoughts in March 2019. See March 2019 VA treatment record. In September 2019, the Veteran expressed concern that he has an emotional wall toward his significant other and his children. His stress and frustration have been increasing which was also impacting his sleep again. He denied any suicide attempts since he was last seen. He denied any planning or intent of self-harm. He reported that he and significant other have been together for over four years now. However, during a September 2019 suicide severity screening, he reported that over the past month, he had actual thoughts of killing himself, but without plan. In an October 2019 VA treatment record, the Veteran stated that he had suicidal thoughts in the past with no plan. He reported in a November 2019 VA treatment record that he had no thoughts of killing himself. In January 2020, the Veteran’s spouse submitted a statement on behalf of her husband. She indicated that the Veteran often retreats into himself, going days and at times weeks without speaking to her and barely speaks to the rest of his family, including his mother, brother and sister. He, more often than not, is severely irritable, snapping and being short with her and their four children. He has depression and cannot maintain a normal sleep schedule. He experiences bouts of paranoia, checking doors and windows through all hours of the day and sometimes repeatedly. She stated that the Veteran confided in her that he often thinks of suicide, and while she thinks he is not suicidal, the thoughts are still there. An August 2020 VA treatment record showed that the Veteran said that things have been worsening with work and family life. He lost his full-time job and has been working part time remote. He said he would have difficulty working with people in person. He and his wife are also on the verge of divorce. He indicated in a September 2020 VA treatment record that he left his job recently and had been working fourteen to fifteen hours a day to avoid everything else. He noted he had poor sleep and continued to have nightmares. He also will explode at little things. He reported some thoughts of death but denied plan or intent to harm self. In another September 2020 VA treatment record, he stated that he continued to struggle and feel frustration with reintegration in family life. The Board finds that from October 1, 2013, the initial grant of service connection for PTSD, to September 20, 2020, the severity and type of symptomatology described by the evidence of record more closely approximates the impairment contemplated by the 70 percent rating criteria. The severity of the Veteran’s PTSD more closely approximates 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; 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); difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. The medical and lay evidence of record shows that the Veteran experienced anxiety, depression, chronic sleep impairment, hypervigilance, exaggerated startle response, some problems with concentration, social withdrawal, irritability, impaired impulse control, disturbances of motivation and mood, inability to establish and maintain effective relationships, and suicidal ideation. Although some of the Veteran’s VA treatment records noted some improvement at times, affording the Veteran the benefit of the doubt, the Board finds that the criteria for a 70 percent rating is the more appropriate rating from the initial grant, October 1, 2013, to September 20, 2020. At no point prior to September 20, 2020, does the Veteran does meet the requirements for a rating in excess of 70 percent for her psychiatric disability. A rating higher than 70 percent requires total social and occupational impairment. The Veteran’s symptomatology does not result in total occupational and social impairment. While at times, the Veteran’s relationship with his significant other and children were strained, he had some close friends and attended church and bible study. VA treatment records noted that the Veteran’s appearance and hygiene were mostly appropriate, and he was fully oriented during this period. The Veteran generally presented with normal speech, thoughts, insight, and judgment. The record does not show persistent delusions or hallucinations. The Veteran generally denied hallucinations and delusions. The record also does not show persistent danger of the Veteran hurting himself or others. The Veteran reported some transient suicidal ideation during the appeal period, but he had no imminent intent or plan. While some issues with memory and concentration are noted and the Veteran’s mother had attested that the Veteran would sometimes forget the names of some of his family members, he was generally able to perform activities of daily living and his thought processes and content were frequently found to be normal. The record also fails to demonstrate grossly inappropriate behavior, as the Veteran’s behavior was often observed to be mostly pleasant and cooperative by various treating physicians. Consequently, the Board finds that the Veteran’s symptomatology does not result in total occupational or social impairment, as required for a 100 percent rating. For the reasons expressed above, the evidence supports an initial evaluation of 70 percent, but no higher, for the Veteran’s PTSD from October 1, 2013 to September 20, 2020. At his July 2015 Board hearing, and in correspondence from January 2020, the Veteran indicated that he would be satisfied with a 70 percent rating for his PTSD. As a 70 percent rating is being granted, this is a full grant of the benefits sought on appeal. AB v. Brown, 6 Vet. App. 35 (1993). REASONS FOR REMAND Entitlement to a TDIU prior to January 9, 2017 The Veteran contends that he is entitled to a TDIU as he cannot secure or follow substantially gainful occupation due to his service-connected conditions. See September 2014 Correspondence. The Veteran meets the minimum schedular criteria for TDIU under 38 C.F.R. 4.16(a) from October 1, 2013 to January 8, 2017. From January 9, 2017, the Veteran is in receipt of a 100 percent schedular rating with the 70 percent evaluation for his PTSD as granted earlier in this Board decision. In March 2015, through contact with the RO via telephone, the Veteran indicated that he is currently working and would like to withdraw the claim for a TDIU as he was currently working. In July 2015, the Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran did not list his previous employment but noted that his current work has been flexible because they have allowed him to work remotely by himself at home. The Veteran’s VA treatment records indicate that the Veteran was working on and off at various times. Thus, the Veteran’s work history is unclear. Upon remand, the RO should undertake additional development, to include obtaining clarification from the Veteran regarding his employment information. Regarding his tax information, in October 2020, the Veteran submitted information from the IRS that they were unable to provide tax documents to the Veteran as he requested. He also stated that he was in the process of scheduling a meeting with the IRS to find out why the tax documents were unable to be provided. Since the matter is being remanded, the Veteran should be asked to provide tax documents again. The matters are REMANDED for the following action: 1. Obtain VA treatment records from January 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. Request that the Veteran provide a detailed current accounting of his work history, from October 2013 to January 2017, including by completing and returning VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. Ask the Veteran to provide IRS tax returns for the years he claims unemployment and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.