Citation Nr: 21012223 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 20-03 840 DATE: March 3, 2021 ORDER Prior to August 28, 2020, a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder is denied. Prior to August 28, 2020, a rating in excess of 60 percent for ischemic heart disease (IHD) is denied. During the period on appeal prior to January 15, 2019, a total disability rating based on individual unemployability (TDIU) is granted. REMANDED The claim for service connection for headaches is remanded. FINDINGS OF FACT 1. Throughout the period on appeal prior to August 28, 2020, the Veteran’s service-connected PTSD with major depressive disorder has not been manifested by total occupational and social impairment. 2. Throughout the period on appeal prior to August 28, 2020, the Veteran’s service-connected IHD has been manifested by a workload of greater than 3 METs, but not greater than 5 METs, with no evidence of chronic congestive heart failure or left ventricular dysfunction with an ejection fraction of less than 30 percent. 3. During the period on appeal prior to January 15, 2019, the probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. Prior to August 28, 2020, the criteria for a rating in excess of 70 percent for PTSD with major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). 2. Prior to August 28, 2020, the criteria for a rating in excess of 60 percent for IHD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.104 Diagnostic Code 7005 (2020). 3. During the period on appeal prior to January 15, 2019, the criteria for establishing entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to September 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2017 and September 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that after a statement of the case (SOC) was issued in December 2019, the Veteran submitted an application for TDIU, and in November 2020, he underwent additional VA mental health and heart examinations pursuant to that claim. Updated VA treatment records were also obtained. Although a supplemental statement of the case (SSOC) was not issued after the receipt of this additional evidence, a November 2020 rating decision granted separate 100 percent ratings for PTSD and IHD, effective August 28, 2020. The Board finds that the Veteran is not prejudiced because he was notified of the RO’s consideration of this evidence and readjudication of his claim in a rating decision rather than a SSOC. See Sprinkle v. Shinseki, 733 F.3d 1180, 1184 (Fed. Cir. 2013) (noting that an SSOC is issued when additional pertinent evidence is received by the AOJ after the issuance of an SOC “[t]o ensure that claimants receive the benefit of this two-tiered review within the agency.”). Moreover, the Veteran was awarded the highest possible ratings based on that evidence, and he was already in receipt of a 100 percent rating and special monthly compensation (SMC) since January 15, 2019. Therefore, a remand for issuance of an SSOC would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board also notes that although the Veteran is in receipt of a 100 percent schedular rating as of January 15, 2019, he asserts that his service-connected disabilities rendered him unemployable prior to that date. Therefore, the Board finds that a claim of entitlement to TDIU prior to January 15, 2019, has been raised by the record as part of his claims for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447, 448 (2009) (holding that a claim for TDIU is part and parcel of a claim for an increased rating when such claim is raised by the record). Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). 1. Entitlement to a rating in excess of 70 percent for PTSD with major depressive disorder prior to August 28, 2020 Service connection for PTSD with major depression was established in the September 2017 rating decision on appeal. As the Veteran is already in receipt of a 100 percent rating PTSD with major depressive disorder beginning August 28, 2020, the issue of entitlement to a higher rating on or after that date is moot. Under the General Rating Formula for Rating Mental Disorders (General Rating Formula), a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A maximum 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 own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or effects thereof, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran’s PTSD and their effect on the level of occupational and social impairment. Id. 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) (2020). The United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and 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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117 Upon review of the record, the Board finds that a rating in excess of 70 percent is not warranted at any time during the period of the appeal prior to August 28, 2020. The Veteran underwent a VA mental health examination in July 2017, during which he endorsed symptoms of depressed mood; anxiety; panic attacks three or more times a week; suspiciousness; hypervigilance; flashbacks about once or twice a week; problems with concentration; chronic sleep impairment; flattened affect; suicidal ideation; 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; an inability to establish and maintain effective relationships; and difficulty adapting to stressful circumstances, including work or a work-like setting. With respect to social impairment, the Veteran reported a history of four failed marriages, which he attributed to his mood changes. He stated that he currently lived alone and did not like to leave his house because he felt safer there. He also noted that his family did not want to be around him. With respect to occupational impairment, the Veteran reported previously working as a truck driver for nine years, which did not bother him because he could be alone. However, he indicated that he stopped working in 2003 after undergoing coronary bypass surgery. He denied any substance abuse or legal problems other than an arrest for writing a bad check. He was alert and oriented and denied any hallucinations. The examiner indicated that the Veteran’s mood was anxious; he sat on the edge of his seat; he was sweating; and he was tearful and stammering at times. The examiner characterized the Veteran’s level of functioning as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran submitted a disability benefits questionnaire (DBQ) and private psychological evaluation dated July 2019, which indicates that the Veteran endorsed symptoms of depressed mood; suicidal ideation; flattened affect; anxiety; suspiciousness; insomnia; nightmares; panic attacks more than once a week; impaired abstract thinking; difficulty adapting to stressful circumstances; memory loss for names of close relatives, own occupation, or own name; near-continuous panic and depression affecting the ability to function effectively; and an intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. The examiner indicated that the Veteran reported being in a relationship with his significant other for the past four months. However, he reported living alone and struggling to performing his daily living tasks, noting that his daughter shopped for his groceries because he did not want to be around people in stores. The Veteran stated that he prepared his own meals, showered about three times a week, and managed his finances independently. The psychologist characterized the Veteran’s level of functioning as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. VA treatment records during the period under review show that the Veteran reported symptoms of anxiety, bouts of depression, and suicidal thoughts. He described being triggered by seeing certain images on television and suddenly feeling like he was back in Vietnam. He stated that his nightmares have increased in intensity and were starting to scare him. He also stated that he tried to stay in contact with his children, but he generally isolated himself from others, and he feared that he may hurt someone due to his anger. The Veteran reported sleeping about three to four hours a night and feeling tired and having little energy nearly every day. He appeared well groomed and appropriately dressed, and his behavior was calm and cooperative. There were no signs of psychomotor agitation or retardation. The Veteran’s thought process was linear, and insight and judgment were intact. Other than a September 2017 nursing note describing the Veteran’s attention span/memory as “limited” when identifying any barriers to learning, the Veteran’s mental health treatment providers indicated that his remote and recent memory were intact. Additionally, although the Veteran reported thoughts of feeling like he would be better off dead, he denied any plan or intent to harm himself, and his treatment providers deemed his risk of self-harm to be low. In summary, the record does not show evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Although the July 2019 private psychological evaluation indicates that the Veteran exhibited intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene, the Board finds that such is not supported by the evidence of record. As previously noted, the Veteran’s treatment providers throughout the period under review consistently indicated that he appeared well groomed and appropriately dressed. Additionally, although the July 2019 private psychologist indicated that the Veteran exhibited memory loss for names of close relatives, own occupation, or own name, the Board likewise finds that such is not supported by the evidence of record. As previously noted, other than a September 2017 nursing note describing the Veteran’s attention span/memory as “limited” when identifying any barriers to learning, the Veteran’s mental health treatment providers consistently indicated that his remote and recent memory were intact. Accordingly, the Board finds that total occupational and social impairment has not been shown, and a rating in excess of 70 percent prior to August 28, 2020, is denied. 2. Entitlement to a rating in excess of 60 percent for IHD prior to August 28, 2020 The Veteran filed a claim for an increased rating in June 2017. He is already in receipt of a 100 percent rating IHD beginning August 28, 2020. Therefore, the issue of entitlement to a higher rating on or after that date is moot. Under Diagnostic Code 7005, a 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year; or, a workload of greater than 3 METs (metabolic equivalent), but not greater than 5 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. A maximum 100 percent rating is warranted for chronic congestive heart failure; or, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. Upon review of the record, the Board finds that a rating in excess of 60 percent is not warranted for IHD at any time during the period under review. The Veteran underwent a VA examination in July 2017, during which he reported undergoing coronary artery bypass surgery in 2003 and stent placement in 2008. He denied receiving any current treatment. The examiner indicated that exercise stress testing could not be performed because it was not part of the Veteran’s treatment plan and could pose a significant risk to the Veteran. Interview-based METs testing revealed a workload of greater than 3 METs, but not greater than 5 METs, resulting in dyspnea and fatigue, which is consistent with activities such as light yard work (weeding), mowing the lawn with power mower, and brisk walking. There was no evidence of congestive heart failure. An electrocardiogram was ordered; however, the Veteran did not respond to two telephone calls and a letter attempting to schedule the electrocardiogram. The Veteran did, however, undergo an electrocardiogram in November 2020, which revealed a left ventricular ejection fraction of 55 percent. The July 2017 VA examiner indicated that the Veteran’s IHD would preclude gainful physical occupations, such as those that require lifting, loading, or climbing, but would not preclude sedentary employment. The Veteran’s treatment records during the period on appeal do not show symptoms more severe than those noted during the VA examination. As the evidence of record does not show chronic congestive heart failure, a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent at any time during the period under review, a rating in excess of 60 percent is not warranted. See 38 C.F.R. § 4.104, Diagnostic Code 7005. In reaching the above conclusions, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning ratings in excess of those already assigned, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 3. Entitlement to TDIU prior to January 15, 2019 As previously noted, the Veteran is already in receipt of a 100 percent rating and SMC at the housebound rate beginning January 15, 2019. Accordingly, the issue of entitlement to TDIU on or after that date is moot. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience throughout the period on appeal prior to January 15, 2019. Prior to January 15, 2019, service-connection was in effect for PTSD with major depressive disorder, was rated as 70 percent disabling; IHD, rated as 60 percent disabling; and a scar associated with IHD, rated as 0 percent disabling. Thus, the schedular criteria for TDIU have been met throughout the period under review. See 38 C.F.R. § 4.16(a). The record shows that the Veteran has a high school education. During service, he worked as a cook and an infantryman. After service, he worked as a landscaper, a cook, a truck driver, and a laborer. On his January 2020 application for TDIU, the Veteran indicated that he last worked in October 2003 cleaning machinery and building scaffolds for a laborer’s union. He indicated that he stopped working and started receiving disability after undergoing coronary artery bypass surgery in 2003. A treatment record dated shortly before the Veteran’s 2003 coronary artery bypass surgery indicates that at the time, the Veteran was working at a steam plant doing “very active labor.” As found above, the Veteran’s service-connected IHD has resulted in a workload of greater than 3 METs, but not greater than 5 METs, resulting in dyspnea and fatigue, which is consistent with activities such as light yard work (weeding), mowing the lawn with power mower, and brisk walking. The July 2017 VA examiner indicated that the Veteran’s service-connected IHD would preclude gainful physical occupations that require activities such as lifting, loading, and climbing, but would not preclude sedentary employment. As found above, the Veteran’s service-connected PTSD has resulted in bouts of depression; anxiety; panic attacks; problems with concentration; chronic sleep impairment; fatigue; mild memory loss; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; an inability to establish and maintain effective relationships; and difficulty adapting to stressful circumstances, including work or a work-like setting. The July 2019 private psychologist opined that the Veteran would not be able to sustain the stress of a competitive work environment or be expected to engage in gainful activity due to his PTSD and major depressive disorder. She also opined that the Veteran’s mental health symptoms would result in high distractibility, absenteeism, and emotional turmoil, which would be inappropriate for a workplace. Based on the Veteran’s psychological and physical limitations and his lack of experience or training for sedentary work, the Board finds that it is at least as likely as not that the Veteran’s service-connected IHD and PTSD rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience throughout the period under review. Accordingly, TDIU is granted for the period on appeal prior to January 15, 2019. REASONS FOR REMAND 4. The claim for service connection for headaches is remanded The Veteran seeks service connection for headaches, which he asserts were caused or aggravated by his service-connected PTSD with major depressive disorder. An October 2018 VA mental health treatment record shows that the Veteran reported having a headache for the past three months. The Veteran also submitted an article regarding an association between mood and anxiety disorders and chronic headaches. Accordingly, the Board finds that a VA medical opinion should be obtained with respect to the question of whether a current headache disability was caused or aggravated by the Veteran’s service-connected PTSD with major depressive disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The matters are REMANDED for the following action: Provide the claims file to an appropriate VA examiner to obtain an opinion with respect to the Veteran’s service connection claim for headaches. If an examination is deemed necessary by the examiner to respond to the question presented, one should be scheduled. After a review of the claims file, the examiner should provide an opinion as to whether it at least as likely as not (50 percent probability or greater) that a current headache disability was caused or aggravated (worsened beyond normal progression) by the Veteran’s service-connected PTSD with major depressive disorder. If aggravation is shown, the examiner should attempt to quantify the degree of aggravation beyond the baseline level of the headache disability. A complete rationale for all opinions must be provided. The examiner’s opinion should reflect consideration of an article submitted by the Veteran titled “Mood and Anxiety Disorders in Chronic Headache” (VBMS - Medical Treatment Record – Non-Government Facility, received 1/21/20). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.