Citation Nr: 21013793 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 20-09 917 DATE: March 10, 2021 ORDER An initial 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) for the period prior to November 23, 2020 is granted. Entitlement to an initial rating in excess of 70 percent for PTSD is denied. REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period prior to November 23, 2020, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximated occupational and social impairment with deficiencies in most areas. 2. For entire period on appeal, the severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating, but no higher, for PTSD for the period prior to November 23, 2020 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to October 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Agency of Original Jurisdiction (AOJ) that granted service connection for PTSD and assigned a 50 percent evaluation, effective January 19, 2016, the date of receipt of the Veteran’s claim. The Veteran disagreed with the evaluation assigned. In May 2016, the AOJ continued the 50 percent evaluation. The Veteran submitted a notice of disagreement in November 2016, and also raised the claim of entitlement to TDIU. These matters were previously before the Board in September 2020 when they were remanded for further development. In December 2020, the RO increased the Veteran’s disability rating for PTSD to 70 percent, effective November 23, 2020. As the increased rating is less than the maximum under the applicable criteria, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders, which provides the following criteria: A 50 percent disability rating is warranted when 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, for example, retention of only highly learned material or forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. 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 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 work-like setting; and the inability to establish and maintain effective relationships. Id. 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 or place; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, "a [V]eteran 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 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency 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. 1. Prior to November 23, 2020 The Veteran generally contends his service-connected PTSD warrants an initial rating in excess of 50 percent for the period prior to November 23, 2020. A review of the record reflects that the Veteran received mental health treatment from the VA. A December 2015 record reflects that the Veteran reported experiencing memory issues since 1967, noting difficulties with short-term memory, remembering names, and forgetting deadlines. He indicated that he wrote himself notes and reminders to help with his memory problems. The Veteran reported anxiety, hypervigilance, and an exaggerated startle response. He denied feeling depressed and was unable to recall whether he has flashbacks or nightmares (although his wife reported that he was restless in his sleep). The Veteran reported fear when others made him angry because he did not know how he would react, noting that in high stress situations he felt overwhelmed. The examiner noted that the Veteran was evasive when asked about being violent in the past. The Veteran reported living with his wife and children and having a good relationship with them. He denied any violence or threat to his family’s safety. He also denied suicidal and homicidal ideation. The Veteran indicated that his anxiety symptoms made it difficult for him to work, take care of things at home, or get along with others. In January 2016, the Veteran reported that his speech had slowed and that he was concerned about whether he was expressing himself well. He also reported infrequent and occasional flashbacks, nightmares, anxiety, and sleep impairment. He denied experiencing a depressed mood; decreased appetite; loss of interest in daily activities; and suicidal and homicidal ideation, noting his religion has helped him through feelings of wanting to hurt himself or others in the past; hyperactivity; and hallucinations. The Veteran reported that he was happily married, had earned a Master’s degree, and had worked as a social worker for several years before retiring. Mental status examination revealed the Veteran was well-dressed and groomed, normal behavior, appropriate eye contact, slow speech, blunted affect, tangential thought process, fair insight, good judgment, and fairly intact short-term memory. Another January 2016 note reflects that the Veteran reported nightmares, irritability, exaggerated startle response, and trouble processing information when he returned from Vietnam. He reported that his symptoms had since reduced, and that he rarely had nightmares and does not have flashbacks. He further reported that he continued to experience hypervigilance and memory problems. Mental status examination revealed he was casually dressed and cooperative, had normal speech, goal-directed thought process, intact associations, “ok” insight and judgment. He was alert and oriented, and an his mood and affect were anxious. There was no evidence of suicidal or homicidal ideation, hallucinations, or delusions. In February 2016, the Veteran reported that he is always checking things for security, noting that he checked his doors and windows to be sure they were locked and secured. He also reported that he was hypervigilant in public, watching his surroundings, nearby people, and noting where the exits were located. He reported being anxious at times, having suboptimal concentration and memory, and a decreased appetite. He denied suicidal ideation, hallucinations, and substance abuse. It was noted that the Veteran was prescribed Sertraline daily for his anxiety. In March 2016, the Veteran underwent a VA examination. He Veteran reported having a good relationship with his brother, noting that they were in regular contact. He also reported being married for 45 years and having five children. He reported that his marriage was “ok” and indicated that he did not have any unresolved conflict or violence in his home. He stated that his relationships with his children were good and that he was in regular contact with them. The Veteran also described incidents where he became so agitated that he would act erratically, reporting a specific incident where he snapped on his daughter and had his hands around her neck. He stated that he limited his close associations to a few family members and close friends for fear of what he could do to others. He reported avoiding conflicts and noisy situations for the same reason. The Veteran reported that he did not hang out much and had become a loner. He stated that he was active in his church and that his spiritual beliefs had helped calm his anxiety and manage his mood. Regarding his occupational history, the Veteran reported that he earned a Master’s degree after service and a certificate in corporate certified management. He also reported a career in social work since the 1990s before he retired in 2011. He denied any poor performance ratings, a pattern of conflict with management or coworkers, and a history of terminations. The Veteran reported poor memory, noting problems with recalling dates or the names of people he grew up with, and indicated that his memory issues have impeded his ability to do his job well. He reported that he began using sticky notes in his office to help with his memory problems. The Veteran also reported that he was prescribed Sertraline and denied any legal or behavioral history or substance abuse history. The examiner indicated that the Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The examiner also indicated that the Veteran was alert and oriented, appropriately dressed and groomed, cooperative, and pleasant. The Veteran had appropriate eye contact, normal speech, an appropriate attitude, and an euthymic mood. His psychomotor activity was unremarkable, intellectual functioning was within normal limits, and thought process was logical and goal-directed. There was no evidence of hallucinations or delusions and the Veteran denied any previous or current suicidal and homicidal ideation. The examiner noted that the Veteran also reported depressive symptoms categorized as a persistent negative emotional state, that his symptoms were mild, and that his symptoms have had an impact on his social functioning. The Veteran denied symptoms associated with mania, disordered impulse control, and psychosis. Lastly, the examiner estimated that the Veteran’s symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In April 2016, the Veteran’s wife provided a statement in which she reported that the Veteran was very active in his sleep, noting that he jumps, sits up suddenly, and talks while sleeping. In April 2016, H.R., a social worker, provided a statement regarding the Veteran’s symptoms. In the statement, H.R. noted that the Veteran reported nightmares, occasional disorientation, and problems with his short- and long-term memory. He also reported experiencing flashbacks and getting nervous when he hears sudden sounds. H.R. noted that the Veteran had difficulty adapting to stressful circumstances, difficulties in large crowds of people, and panic attacks. H.R. also noted that the Veteran had an anger disorder, anxiety disorder, sleep disturbance, mood disturbance, anhedonia, suspiciousness, depression, and social impairment. H.R. indicated that the Veteran had suicidal ideation but no plan and that his suicidal ideation had diminished since attending therapy. On a March 2020 VA Form 9, the Veteran’s attorney reported that the Veteran’s symptoms included suicidal ideation, obsessional rituals, hypervigilance, anxiety, depression, recurrent panic attacks, severe memory problems, and nightmares. Additional VA treatment records further provide information regarding the Veteran’s symptoms. For example, in March 2016, the Veteran reported feeling anxious and worrying about his safety as news of terrorist attacks were triggering him. He reported that he is easily startled and goes into attack mode when he is startled. In April 2016, the Veteran complained of poor cognition, difficulties in crowds, and hypervigilance. The dosage of his Sertraline was also increased. His mood was described as mellow and his interest in activities was “up and down.” In September 2016, the Veteran reported that his mood fluctuates, noting he can be anxious and irritable at times. He reported sleep impairment and denied suicidal and homicidal ideation and hallucinations. Mental status examination revealed a sad affect. A December 2016 note reflects that the Veteran reported being triggered monthly by the sound of helicopters. He also reported feeling uncomfortable in crowds and a concern that people were “looking at him.” The dosage for his Sertraline was increased again. In August 2017, the Veteran reported monthly nightmares, flashbacks triggered by the weather, and fair concentration (although he reported he was easily distracted). Mental status examination revealed a flat affect. In February 2018, the Veteran reported that his mood was “down” and that he was reminded of his experiences in Vietnam almost daily. He denied suicidal ideation but reported thoughts of death given his health problems. In August 2018, the Veteran reported that the weather, especially rain, triggered flashbacks. Mental status examination revealed normal speech, he was alert and oriented, and a flat affect. In August 2019, the Veteran reported an alright mood; interest in activities, including reading and watching television; fair concentration; and suboptimal memory. A February 2020 record reflects that the Veteran was offered but declined another psychiatric medication. After review of the evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board finds that for the period prior to November 23, 2020, the evidence demonstrates that the Veteran’s overall disability picture due to his PTSD symptoms more nearly approximates the criteria for a higher 70 percent rating. The record indicates that the Veteran’s PTSD was characterized by symptoms of obsessional rituals, including checking doors and windows; constant anxiety; irritability; and difficulty establishing and maintaining effective work and social relationships. In addition, there is evidence indicating his PTSD caused impairment in his judgment as he reported an incident where he snapped on his daughter and had his hands around her neck. There is also evidence his symptoms caused an impairment in his thinking and mood as a January 2016 VA treatment record noted that the Veteran’s thought process was tangential and various other records reported the Veteran’s mood was depressed and anxious. The record also reflects an impairment in the area of work as a December 2015 VA treatment record reflects that the Veteran reported difficulty with work because he kept forgetting deadlines and he has also reported problems with concentration. The Board acknowledges that the March 2016 examiner estimated that the Veteran’s PTSD symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. However, the Board finds the frequency, duration, and severity of the Veteran’s symptoms most nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or the criteria for a 70 percent rating, prior to November 23, 2020. However, the Board finds the Veteran’s PTSD symptoms did not approximate a level of severity contemplated by the maximum 100 percent rating criteria. A preponderance of the evidence is against a finding that the Veteran’s symptoms manifested in total occupational and social impairment. Although the Veteran described his marriage as “ok” on one occasion, noted in the March 2016 VA examination report, there is no evidence the Veteran has a deficiency in the area of family relations as he reported a good relationship with his wife on other occasions in the record. In addition, he has also reported a good relationship with his children and his brother and that he is in regular contact with them. There also is no evidence of a deficiency in social relationships as the Veteran reported having close friends and being active in his church. Furthermore, while there is evidence of impaired impulse control noted, the record does not reflect that such was of sufficient severity, frequency, and duration to more nearly approximate the Veteran being a persistent danger of hurting himself or others. Lastly, while the Veteran has consistently reported memory problems, there is no evidence he has had difficulty remembering the names of close relatives, his own occupation, or his own name. The record also does not reflect other symptoms of such duration, frequency, and severity to more nearly approximate total occupational and social impairment, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); or disorientation to time or place. Consequently, the Board concludes entitlement to an initial 70 percent rating for PTSD for the period prior to November 23, 2020 is warranted. 2. Initial evaluation higher than 70 percent As noted above, the RO increased the Veteran’s disability rating to 70 percent, effective November 23, 2020. Considering the Board’s assignment of a 70 percent evaluation for the period prior to November 23, 2020, the remaining question is whether an initial evaluation higher than 70 percent is warranted during the appellate period. In addition to the evidence discussed above, the record contains the report of a November 2020 VA examination. The examiner noted diagnoses of PTSD and a single episode of Major Depressive Disorder which resulted from the impairments and limitations the PTSD caused on the Veteran’s life. The examiner indicated that it was not possible to differentiate what symptoms are attributable to each diagnosis as the symptoms and their resulting impairments overlap. During the examination, the Veteran reported that he continued to live with his wife and one of his daughters, noting that another daughter is in and out of the home. He reported experiencing flashbacks when his children have arguments and indicated that he blacks out during those incidents. On one occasion, he started choking his daughter and, on another, he was punching the wall. He reported that his family does not understand and are not good support. He also reported that he does not socialize and prefers to keep to himself. Regarding his occupational history, the Veteran reported that he retired in 2011 and gave up his job because it was too triggering for him. He also reported frequent confrontations with his boss and indicated that his lack of focus made him late on paperwork. The Veteran reported that he was prescribed Sertraline and attended weekly group therapy. He denied any legal, behavioral, and substance abuse history. The examiner reported that the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once per week, sleep impairment, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work), and an inability to establish and maintain effective relationships. The examiner indicated that the Veteran was casually dressed without any apparent signs of personal neglect; had avoidant eye contact, typical motor movements, normal speech, depressed mood, and flat affect; was oriented, and had good judgment and insight. There was no suicidal or homicidal ideation, delusional thinking, or impairment in recall. The examiner also noted that additional symptoms included nightmares, flashbacks, constant depression, anxiety, anger, panic attacks, avoidance, overly negative thoughts and assumptions about self, chronic negative affect, isolation and detachment from others, irritability, difficulty concentrating, sleep impairment, fatigue, and a diminished ability to think or concentrate. The examiner estimated that the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Lastly, the examiner indicated that the Veteran was not a current imminent or increased. After a review of the evidence of record, the Board finds the evidence does not support an initial rating in excess of 70 percent at any time during the period on appeal. The evidence preponderates against finding that the Veteran has symptoms of such duration, severity, and frequency as those contemplated by the maximum 100 percent rating. In addition, there is no evidence the Veteran has experienced symptoms contemplated by the 100 percent rating, including 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 loss of memory regarding names of close relatives, own name, or own occupation. Although the Veteran described his marriage as “ok” on one occasion, noted in the March 2016 VA examination report, there is no evidence the Veteran has a deficiency in the area of family relations as he reported a good relationship with his wife on other occasions in the record. In addition, he has also reported a good relationship with his children and his brother and that he is in regular contact with them. There also is no evidence of a deficiency in social relationships as the Veteran reported having close friends and being active in his church. Furthermore, while there is evidence of impaired impulse control noted, the record does not reflect that such was of sufficient severity, frequency, and duration to more nearly approximate the Veteran being a persistent danger of hurting himself or others. Lastly, while the Veteran has consistently reported memory problems, there is no evidence that he has had difficulty remembering the names of close relatives, his own occupation, or his own name. The record also does not reflect other symptoms of such duration, frequency, and severity to more nearly approximate total occupational and social impairment, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); or disorientation to time or place. Consequently, the Board concludes that the benefit-of-the-doubt rule is not applicable, and an initial evaluation higher than 70 percent is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Entitlement to TDIU is remanded. A review of the record reflects that several letters were sent to the Veteran’s last employer asking that VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, be completed and returned. However, the letters were returned as undeliverable. In a July 2020 letter, the Agency of Original Jurisdiction (AOJ) asked the Veteran to provide an updated employment address for his last employer and, in a July 2020 letter, the Veteran’s attorney provided an updated address. However, there is no indication in the record that the AOJ sent a VA Form 21-4192 to the new address in an attempt to obtain information regarding the Veteran’s employment. As any information the Veteran’s last employer provides may be pertinent to the Veteran’s TDIU claim, the Board finds remand to allow the AOJ to send an updated request to the Veteran’s employer is required. The matters are REMANDED for the following action: Attempt to obtain employment information from Trenton Psychiatric Hospital, including sending the employer VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability, at the new address provided by the Veteran’s attorney and included in the record. J. BARONE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.