Citation Nr: 21013327 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-05 303 DATE: March 9, 2021 ORDER Prior to September 18, 2017, entitlement to an initial disability rating in excess of 50 percent for the Veteran’s service-connected posttraumatic stress disorder (PTSD) is denied. Effective September 18, 2017, but no earlier, entitlement to an initial disability rating of 70 percent, but no higher, for the Veteran’s service-connected PTSD is granted. FINDINGS OF FACT 1. Prior to September 18, 2017, the Veteran’s service-connected PTSD has most closely approximated occupational and social impairment with reduced reliability and productivity. 2. Effective September 18, 2017, the Veteran’s service-connected PTSD has most closely approximated occupational and social impairment with deficiencies in most areas. Total occupational and social impairment has not been shown during this period. CONCLUSIONS OF LAW 1. Prior to September 18, 2017, the criteria for entitlement to an initial disability rating in excess of 50 percent for the Veteran’s service-connected PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. Effective September 18, 2017, but no earlier, the criteria for entitlement to an initial disability rating of 70 percent, but no higher, for the Veteran’s service-connected PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to November 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran presented sworn testimony before the undersigned Veterans Law Judge at an August 2019 Board hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. Neither the Veteran nor his representative has raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Increased Rating for Service-Connected PTSD The Veteran is currently receiving an initial 50 percent rating for his service-connected PTSD prior to January 30, 2020, and a 70 percent rating thereafter, under 38 C.F.R. § 4.130, Diagnostic Code 9411. On appeal, the Veteran seeks a higher initial disability rating for the entire appellate period. Following a complete review of the electronic claims file, the Board finds that the Veteran has not satisfied the regulatory requirements for a rating higher than 50 percent prior to September 18, 2017. However, the evidence supports a higher 70 percent rating, effective September 18, 2017, but no earlier, for the Veteran’s service-connected PTSD, and to this limited extent, the Veteran’s appeal is granted. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. I. Prior to September 18, 2017 The Veteran attended a VA examination in November 2015 to assess the nature and severity of his claimed psychiatric disability. The VA examiner issued a diagnosis of unspecified anxiety disorder. The Veteran reported anger issues and difficulty getting along with supervisors. He reported anxiety, concentration deficits, and irritability while working. A mental status examination showed that the Veteran was well-oriented; his mood was dysthymic; his affect was worried and anxious; he made good eye contact; he had no suicidal or homicidal thoughts; he had no delusions or hallucinations; and his memory, insight, and judgment were intact. The Veteran was seen by his VA primary care physician in March 2016 for mental health concerns. A PTSD screen was positive. The Veteran reported anxiety and depressive symptoms; difficulty with interpersonal relationships; an uncomfortable feeling in crowds; hypervigilance; difficulty sleeping; and short-term memory loss. The Veteran was prescribed psychiatric medication. A follow-up VA treatment visit in May 2016 indicated that the Veteran’s PTSD was stabilizing on the new medication, and he reported an improved mood. The Veteran attended an additional VA psychiatric examination in May 2016. The Veteran was diagnosed with PTSD and unspecified depressive disorder. The VA examiner documented the Veteran’s reports of depression, low energy, no interest in past hobbies of hunting and fishing, socially isolative behavior, and concentration issues. He denied the presence of suicidal thoughts. The Veteran was able to drive and take care of himself. The VA examiner determined that the Veteran’s active psychiatric symptoms were depressed mood; panic attacks occurring weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A mental status examination showed that the Veteran was well-oriented; his mood was dysthymic; his affect was anxious; he was without suicidal/homicidal thoughts, delusions, or hallucinations; and his memory, insight, and judgment were described as fair. The Board has considered whether the evidence supports a higher 70 percent rating for service-connected PTSD during the period prior to September 18, 2017. At no point during this period has the Veteran reported suicidal or homicidal ideation. In fact, VA treatment records and examinations consistently charted that the Veteran denied suicidal or homicidal thoughts. There is no evidence of obsessional ritual behaviors which interferes with the Veteran’s routine activities. The May 2016 VA examiner stated that the Veteran was fully able to drive and care for himself. There is no indication in the record that the Veteran experienced any speech/communication deficits or that he neglected his personal appearance or hygiene during the relevant time frame. At times, the Veteran has exhibited a depressive and anxious mood, however there is no credible lay or medical evidence proving the Veteran’s mood remained anxious or depressed on a near-continuous basis, and the Veteran remained capable of independent functioning. While the Veteran described himself as irritable, there is no evidence establishing that this irritability was unprovoked or resulted in violent tendencies. The Veteran remained well-oriented at the mental status examinations conducted by the November 2015 and May 2016 VA examiners. Although the Veteran reported social withdrawal, he remained capable of maintaining effective relationships, to include his marriage. The Veteran’s interpersonal conflict with work superiors are adequately contemplated by his 50 percent rating, which contemplates difficulty in establishing and maintaining effective work and social relationships. Any other reported symptoms not contemplated by a 50 percent rating under the General Formula were not similar in severity, frequency, and duration to the listed symptoms associated with a higher 70 percent rating. The evidence does not indicate that the Veteran’s psychiatric symptoms were productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood during the period prior to September 18, 2017. The Board has also considered whether an assignment of a 100 percent schedular rating is appropriate during the period prior to September 18, 2017. However, the Veteran has never exhibited gross impairment in thought processes or communication; persistent delusions; 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; or any other psychiatric symptoms of a similar severity, frequency, or duration to warrant a higher 100 percent rating. The Veteran consistently denied suicidal/homicidal ideations and delusions/hallucinations; his reported memory loss was mild; he remained well-oriented; and he did not engage in grossly inappropriate behavior. During the period prior to September 18, 2017, the Veteran’s psychiatric symptoms did not produce total occupational and social impairment rising to the level of a 100 percent rating. For the reasons stated above, the Board finds that the weight of the evidence establishes that the Veteran’s PTSD has most closely approximated the 50 percent criteria for the period prior to September 18, 2017, and his appeal seeking a higher initial disability rating is denied. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Since September 18, 2017 In a July 2020 rating decision, the RO increased the Veteran’s disability rating to 70 percent for his service-connected PTSD, effective January 30, 2020, the date of his most recent VA psychiatric examination. However, in Swain v. McDonald, 27 Vet. App. 219 (2015), the United States Court of Appeals for Veterans Claims (CAVC) held that assigning the effective date of an increased rating is not a mechanical exercise of applying the date of the VA examination that warranted the increase. Id. at 223-24. Rather, the Board must review all relevant evidence to determine when the increase in the disability can be factually ascertained. Id. In the present matter, the evidence indicates that the Veteran contacted the VA National Suicide Prevention Hotline on September 18, 2017 to discuss his psychiatric symptoms and psychosocial stressors. He denied current suicidal thoughts during the phone call, but related having suicidal thoughts in the prior two months. At the August 2019 Board hearing, the Veteran reported a history of calling the suicide hotline 4 or 5 times in the preceding 3 to 4 years. The CAVC has noted that suicidal ideation appears only in the 70 percent rating criteria in the General Formula, and there are no analogues at the lower levels; thus, evidence beyond suicidal thoughts is not required for a 70 percent rating. See Bankhead, 29 Vet. App. at 20-21. Accordingly, the Board finds that the Veteran is entitled a 70 percent rating, effective September 18, 2017, the date that it was first factually ascertainable in the record that the Veteran’s service-connected PTSD manifested in suicidal thoughts. To this extent, the Board shall grant an earlier effective date of September 18, 2017 for the Veteran’s 70 percent rating for his service-connected PTSD. The remaining issue in this appeal is whether the Veteran’s PTSD symptoms have caused the level of impairment required for a disability rating of 100 percent since September 18, 2017. The Veteran attended a final VA psychiatric examination in January 2020 to assess the severity of his service-connected PTSD. The Veteran exhibited active suicidal ideation, with a vague plan, but no intent. The Veteran reported no prior suicide attempts. He reported that his suicidal ideation occurred a few times per week. The Veteran reported that he physically attacked an employee who injured him. He also reported a history of verbal altercations. The Veteran reported that he would go 4 to 5 days without taking a shower, as he lacked the energy for self-care. The VA examiner noted that the Veteran had a divorce in 2016, was briefly homeless in 2017-2018, and has lived with a new girlfriend for 1.5 years. He sees his children every other weekend and spends time with his girlfriend and her kids. He reported stress at work and difficulty interacting with others. He reported shouting matches with his supervisors. He reported recurring thoughts of suicide with increased frequency and several episodes of depression where he could not get out of bed or shower for weeks at a time. The VA examiner stated the Veteran’s most predominant psychiatric symptoms were depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; and neglect of personal appearance and hygiene. Mental status examination showed that the Veteran was appropriately dressed and adequately groomed; his attitude was guarded at first, but cooperative; he exhibited no abnormal psychomotor changes; his speech had normal rate, tone, and volume; his eye contact was adequate; his mood was depressed; his affect was anxious; his thought content was goal-directed and logical; and there was no evidence of hallucinations or delusions. The VA examiner noted that the Veteran’s depressed/irritable mood resulted in weight gain due to sedentary behaviors and stress eating. The Veteran exhibited frequent thoughts of guilt and worthlessness, difficulty with concentration, and active suicidal thoughts with vague plan and no intent, several times per week. He cited his children as a protective factor, but suicidal ideation was triggered by stress at work and interpersonal issues. He had no specific suicidal plan, but a vague plan of shooting himself. He kept his gun at his father’s house to prevent action on his thoughts. He had impaired impulse control contributing to job issues, divorce, and a strained relationship with his girlfriend. He reported having 13 jobs since leaving the military in 2006. [Continued on Next Page] During the period since September 18, 2017, the Veteran did not exhibit gross impairment in thought processes or communication (he had normal speech and goal-directed thought processes); he did not suffer from delusions or hallucinations; he did not engage in grossly inappropriate behavior; he was not disoriented to time or place; and he did not have severe memory loss. While the Veteran reported suicidal ideation, he did not have intent and undertook protective measures to prevent following through with his vague suicidal plan; thus, the Veteran was not in persistent danger of hurting himself. Likewise, he reported occasional violent altercations with co-workers, but these infrequent episodes simply do not rise to the level of severity and duration necessary to be considered a persistent finding. Additionally, while the Veteran reported periods of poor hygiene, he presented to the January 2020 VA examiner as casually and appropriately dressed; thus, the Board does not find this symptom to be of such a severity to warrant a 100 percent rating. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent since September 18, 2017. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. Accordingly, the Veteran’s appeal seeking an initial disability rating in excess of 70 percent since September 18, 2017 for his service-connected PTSD is denied. As the evidence preponderates against a higher rating, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 50. The Board has considered whether an inferred claim of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the evidence. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported losing a job due to violent outbursts during the appellate period; but quickly, he regained employment, and there is no indication that this employment is marginal in nature or performed in a sheltered work environment. While the Veteran’s service-connected PTSD results in a degree of occupational impairment, there is no evidence that he is precluded from securing all forms of substantially gainful employment based on his service-connected disability during the appellate period. Accordingly, the Board declines to assert jurisdiction over an inferred claim of entitlement to a TDIU. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.