Citation Nr: 21011817 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-16 975 DATE: March 2, 2021 ORDER Entitlement to an increased initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prion to February 12, 2016 is denied. Entitlement to an evaluation in excess of 50 percent for PTSD for the period from February 12, 2016 to October 13, 2016 is denied. An earlier effective date of February 12, 2016, for the grant of entitlement to a finding of total disability due individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to February 12, 2016, the Veteran’s PTSD was manifested by symptoms which most closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; he generally functioned satisfactorily, with routine behavior, self-care, and conversation normal. 2. From February 12, 2016 to October 12, 2016, the Veteran’s PTSD was manifested by symptoms which most closely approximate occupational and social impairment with reduced reliability and productivity. 3. The Veteran has been unable to secure and follow substantially gainful employment since February 12, 2016, due to his service-connected PTSD and obstructive sleep apnea due to PTSD. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for PTSD, prior to February 12, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 – 4.7, 4.21, 4.130, Diagnostic Code 9411. 2. The criteria for an evaluation of 50 percent, but no higher, for PTSD from February 12, 2016 to October 13, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 – 4.7, 4.21, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to TDIU are met, as of February 12, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1990 to April 1995 and in the Army from January 2005 to April 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2012 and June 2015 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs. The Veteran testified at a November 2018 videoconference hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The Veteran confirmed at his hearing that he was satisfied with the 70 percent evaluation he received for PTSD effective October 13, 2016 and was only appealing the initial 30 percent evaluation in effect prior to October 13, 2016. In a March 2019 decision, the Board denied the Veteran’s claim for an initial increased rating in excess of 30 percent for PTSD prior to February 12, 2016 and granted an increased evaluation of 50 percent from February 12, 2016 to October 13, 2016. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, on the basis of a Joint Motion for Remand (JMR), the Court vacated the Board’s decision and remanded for readjudication. The Court found that the Board’s March 2019 decision failed to provide adequate reasons and bases for the PTSD ratings and that it failed to include a discussion of entitlement to TDIU prior to October 2016. Specifically, the parties agreed that the Board failed to discuss September 3, 2015, and June 20, 2014, VA treatment records which indicated the Veteran “May have non-suicidal morbid ideations, possible fleeting suicidal ideations with no plan or intent.” The parties also agreed that the Board did not discuss the Veteran’s approved FMLA leave due to his psychiatric disability starting in February 2016 and which indicated he missed 25 to 30 days of work in the three to four months prior to going on FMLA in finding that he was not entitled to a rating in excess of 50 percent for the period from February 12, 2016 to October 13, 2016. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in March and May 2011. The RO associated the Veteran’s service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 - 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA 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. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). Pursuant to 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders (“General Rating Formula”). A 30 percent evaluation is warranted where there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where there is 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when 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 and place; memory loss for names of close relatives, own occupation or name. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 426, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency and duration. Vazquez-Claudio, 713 F.3d at 118. Having carefully considered all the evidence of record, the Board finds that the Veteran’s PTSD symptoms meet the criteria for a 50 percent disability rating pursuant to the rating criteria as of February 12, 2016, and for 30 percent prior to that date. VA treatment notes from January 2011 through August 2011 reflect the Veteran’s symptoms of depression, but note that he was not suicidal, nor did he experience any suicidal or homicidal ideations or delusions. Notes from a June 2011 reflect the Veteran’s anxiety and depression and note that his anger level was “higher than he would like it to be, moderate to high, at all times; no physical or aggressive behaviors.” Mental status revealed the Veteran to be appropriately dressed, adequately groomed; cooperative; speech of normal rate and volume; appropriate affect and mood; spontaneous, logical and coherent speech with no thought disorganization, pressured speech, looseness of associations, flight of ideas or circumstantialities; no delusions or hallucinations noted; no suicidal or homicidal ideas; alert and oriented; attention and concentration were adequate. The Veteran’s spouse, BS, submitted a statement in support of the Veteran’s claim for service connection for PTSD in May 2011. BS stated that the Veteran was irritable and angry when faced with challenging situations. VA treatment notes reveal that the Veteran was initially diagnosed with PTSD in August 2011. The clinician noted the Veteran’s avoidant behavior, intrusive re-experiencing of events and some hypervigilance; and diagnosed him with PTSD, noted to be relatively mild. The Veteran was started on a low dose of Citalopram and a trial of Prazosin. The Veteran continued to receive mental health treatment in September and December 2011. The Veteran underwent a VA initial PTSD examination in February 2012. He reported that he experienced painful, intrusive memories of his combat experiences on and almost daily basis, nightmares 2 to 3 times per week, and distress when exposed to stimuli reminding him of combat experiences such as the news coverage of current wars and unexpected loud noises. He has tried to push away painful thoughts, memories and avoids talking about combat experiences. He reported a loss of interest in previously pleasurable activities such as exercising. He described some degree of emotional withdrawal, ongoing feelings of anxiety related to hypervigilance, disturbed sleep patterns, and feelings of frustration and impatience. The Veteran reported that he was currently working for Wal-Mart as a fraud investigator and that he was receiving mental health treatment at the Fayetteville VA medical center and was taking Celexa and Prazosin. The Veteran had been married since 2009 and enjoyed going out with his wife. He had earned a bachelor’s degree and was socially active while he was in school. Mental status examination revealed him to be alert, oriented and cooperative. He appeared anxious with a constricted affect. His thoughts were clear and goal oriented. The examiner noted no evidence of delusions or hallucinations. The Veteran’s cognitive abilities, including abstract thinking, memory and judgment were intact. His grooming and hygiene were appropriate, as were speech and communication. He denied suicidal ideation but described ongoing hypervigilance. The examiner noted that the ongoing difficulties the Veteran described caused some emotional withdrawal and agitation, resulting in some marital discord and sleep disturbance, and confirmed his diagnosis of PTSD. VA treatment records show that the Veteran continued to seek intermittent treatment for PTSD at VAMC Fayetteville from March 2012 through June 2014. On June 20, 2014 the Veteran underwent a suicide risk assessment conducted by the Veteran’s treating VA psychiatrist Dr. BWM. The Veteran reported that he was not suicidal or homicidal, and reported no suicidal or homicidal thoughts within the last week or within the last six months. He reported no past suicide attempt. He reported that others do not say he loses his temper easily or that he has a history of becoming physically aggressive. Dr. BWM noted that the Veteran was a low risk for suicide indicating “strong protective factors, some risk factors” and “May have non-suicidal morbid ideations, possible fleeting suicidal ideations with no plan or intent.” Dr. BWM further noted that the Veteran’s chart “will NOT be flagged as a High Risk for Suicide Behavior.” Additional treatment notes from June 20, 2014 reflect the Veteran said he was “doing OK though still has some dreams/nightmares.” He reported that he has heard things about Iraq and Iran on the news while in the breakroom at work that makes him a little anxious and may be playing a role in his dreams/nightmares. He was comfortable with his current dosage of Prazosin and did not want to increase it. With regard to anxiety, the Veteran continued to take citalopram and felt that he was doing better than when he started on it; he still had some symptoms but overall was pleased with response and had no side effects. The Veteran reported that work was going well, and his family was doing fine. At a September 3, 2015 suicide risk assessment completed by Dr. BWM the Veteran reported he was not suicidal or homicidal and had not had any suicidal or homicidal thoughts in the last week or last six months. He reported no previous suicide attempt and that others do not say he loses his temper easily or has a history of becoming physically aggressive. His protective factors included positive therapeutic relationship, positive social support, sense of responsibility to family, spirituality, reality testing, life satisfaction, children in the home, positive coping skills, positive problem-solving skills, safety plan and treatment compliance. His sole risk factor was his psychiatric diagnosis. Based on the evaluation, Dr. BWM determined the Veteran was a low risk for suicide due to his strong protective factors, some risk factors and noted the Veteran “may have non-suicidal morbid ideations, possible fleeting suicidal ideations with no plan or intent.” Additional treatment notes reflected the Veteran reported that he had good days and bad days. He still was “bothered by new reports or sometimes seeing things in the paper.” He was not having suicidal ideation. He stated that his medication seemed to help but not enough. He did not report suicidal ideation. Work was going well for him and his anxiety and insomnia had not impacted his work. A December 2015 treatment note indicated the Veteran reported his anxiety was still there, but he denied experiencing any severe bad days, rather indicated that he has a few more good days. A January 2016 treatment note indicated the Veteran was last involved in psychotherapy more than one year ago and had not followed up due to difficulty getting off from work. Treatment notes dated February 2016 indicate the Veteran submitted paperwork for his treating VA psychiatrist, Dr. BWM, to complete regarding leave he wanted to take due to his PTSD symptoms. In notes dated March 2016 Dr. BWM indicated the Veteran did not follow up with treatment during his time off from work, which was part of the purpose of his leave. The Veteran submitted copies of medical leave paperwork completed by Dr. BWM on behalf of the Veteran. In a treatment note dated February 11, 2016, Dr. BWM noted that the Veteran called in early January asking for a letter listing his diagnoses so he could take it to work to get some time off; yet he never picked up the letter. On February 11, 2016 the Veteran presented with FMLA paperwork and reported feeling overwhelmed. He denied any suicidal ideation but stated he “feels very anxious and it is interfering with his work performance. He is planning on presenting to work tomorrow as he feels he needs about a month off.” In the FMLA paperwork, Dr. BWM indicated that as of February 12, 2016, the Veteran was having an acute exacerbation of PTSD manifested as high levels of anxiety, poor concentration, and difficulty interacting with others and was temporarily unable to perform any of his job functions. Dr. BWM stated that the Veteran would be referred for intensive psychotherapy, and that such treatment was medically necessary. Dr. BWM further indicated that the Veteran would be out of work from February 12, 2016 through March and that he would need to attend follow-up treatment after such time twice a week for one year. A telephone encounter noted dated February 25, 2016 indicates the Veteran was contacted and reminded that Dr. BWM had hoped he would engage in treatment while he was on his four-week FMLA. The Veteran said he would try to make a group session on March 2, 2016. The treatment notes are negative for any record of the Veteran attending therapy sessions in February or March 2016. A treatment note dated April 11, 2016 indicates the Veteran was discharged from the clinic as he had moved to Virginia. Treatment notes dated May 2016 indicate the Veteran had moved to the Washington, D.C. area and sought to establish care at the Washington VA medical center. He reported a history of PTSD and that he was taking Prazosin and Sertraline with good effect. The medications had reduced his symptoms and he was contemplative about his need for therapy. He reported that he lived more than an hour from the medical center and frequent psych visits would be difficult. He reported that he was working as a security officer. The Veteran was not found to be suicidal or hopeless about his future. He was to obtain treatment outside of VA. The Veteran submitted a December 2016 private medical opinion in support of his claim for TDIU. In this opinion, the clinician states the Veteran “began missing days due to the increasing severity of his PTSD. After missing 25-30 days of work over the course of three to four months, the veteran’s MD requested he take FMLA leave to get himself settled.” The Veteran testified at his October 2018 hearing that from 2012 to 2016 he experienced a progression of his symptoms of PTSD, from experiencing minimal dreams to more exaggerated dreams which would cause him to wake up at night and not be able to get back to sleep. The Veteran stated he had more bad days than good days. The Veteran stated that he began missing days from work due to PTSD between July 2010 and June 2014. Prior to February 12, 2016, the Veteran’s symptoms more closely approximate the criteria for a 30 percent disability evaluation. The findings of the February 2012 VA examination note that while the Veteran exhibited some anxiety and emotional difficulties, he did not exhibit symptoms including circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; impairment of short- and long-term memory; impaired judgment or impaired abstract thinking. He attended psychotherapy on an intermittent basis and had good results with the medications he was prescribed. VA treatment records consistently reflect the Veteran did not experience suicidal or homicidal ideation. While Dr. BWM noted the Veteran “May have may have non-suicidal morbid ideations, possible fleeting suicidal ideations,” Dr. BWM indicated the Veteran had no plan or intent. Additionally, Dr. BWM did not definitively determine that the Veteran experienced these symptoms. The Veteran and his spouse noted that the Veteran experienced symptoms of anger and irritability. There is no indication that he experienced impaired judgment, flattened affect, circumstantial, circumlocutory, or stereo typed speech, panic attacks more than once a week difficulty in understanding complex commands, and impaired abstract thinking during this period of time. While the private opinion obtained in support of the Veteran’s claim for TDIU indicates that he missed 25 to 30 days of work due to his PTSD symptoms prior to February 2016, there is no documentation associated with the claims file which supports this assertion. Rather, the evidence indicates the Veteran was able to manage his symptoms with the assistance of medication and therapy. The Board finds that the symptoms the Veteran exhibited for the period on appeal from March 1, 2011 to February 12, 2016, most closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the criteria associated with a 30 percent disability evaluation. For the period on appeal from February 12, 2016 to October 13, 2016, the Board finds that the evidence is reflective of, at most, a 50 percent disability rating. The Veteran submitted paperwork to Dr. BWM, for his completion, in support of the Veteran’s request to take time off from work due to his PTSD symptoms. The paperwork indicates that he was experiencing poor concentration, high levels of anxiety and difficulty interacting with others. A review of the claims file reveals this is the only documentation reflecting these symptoms. The purpose of the leave was to allow the Veteran to receive psychotherapy, which he failed to do. The medical evidence of record does not indicate that the Veteran experienced suicidal ideation, obsessional rituals which interfered 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; or an inability to establish and maintain effective relationships during this time period. While the Veteran exhibited some difficulty with work during this time period, there is no indication in the medical records that his symptoms were severe enough to cause occupational and social impairment with deficiencies in most areas; therefore, a 70 percent rating, or higher, is not warranted. TDIU In the JMR, the parties directed the Board to determine whether the Veteran is entitled to TDIU prior to October 2016, as the Veteran submitted evidence that he was approved for leave for FMLA due to his psychiatric condition in February 2016. A review of the file reveals that on his VA Form 21-8940, Application for Increased Compensation Based on Unemployability, submitted in June 2016, the Veteran indicated that he last worked full time on February 12, 2016 due to his service-connected PTSD. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board notes that in its March 2019 decision, the Veteran’s claims for entitlement to service connection for obstructive sleep apnea and for erectile dysfunction, both claimed as secondary to his service-connected PTSD were remanded for additional development. In June 2020, the Veteran’s claim for entitlement to service connection for obstructive sleep apnea, due to PTSD was granted and this disability was assigned a 50 percent disability evaluation effective March 1, 2011. Entitlement to service connection for erectile dysfunction, due to PTSD was also awarded effective October 17, 2012 and a noncompensable evaluation was assigned for such. Thus, as of February 12, 2016, the date the Veteran last worked full time, the Veteran meets the criteria for eligibility for entitlement to TDIU as he has a combined evaluation of 80 percent; obstructive sleep apnea, due to PTSD evaluated as 50 percent and PTSD evaluated as 50 percent. Therefore, as the Veteran has indicated he last worked on February 12, 2016, due to his service-connected PTSD, and factual entitlement to TDIU is shown as of that date, an effective date of February 12, 2016 for entitlement to TDIU is granted. The Board notes that while entitlement to TDIU is granted based on the single disability of PTSD since February 12, 2016, as per the RO findings of March 2017 and the above discussion, and hence potential entitlement to special monthly compensation (SMC) based on statutory housebound status is raised, the Veteran does not have additional service-connected disabilities independently rated a combined 60 percent at this time. 38 C.F.R. § 3.350; Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, 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.