Citation Nr: 21014101 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 12-23 756 DATE: March 11, 2021 ORDER Entitlement to a disability rating in excess of 70 percent since July 28, 2016 for service-connected posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) prior to September 1, 2016 is remanded. FINDING OF FACT Since July 28, 2016, the Veteran’s PTSD has not manifested with a total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1965 to November 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Newark, New Jersey, which granted service connection for PTSD and assigned a 50 percent disability evaluation affective September 29, 2009. During the course of the Veteran’s appeal, a higher rating of 70 percent was awarded for the period on appeal. The issue of entitlement to a disability rating in excess of 70 percent was previously adjudicated by the Board in July 2019; however, the period since July 28, 2016 was remanded to ensure the Veteran’s due process rights were protected. That matter has returned to the Board for adjudication. In addition, to an increased disability for PTSD, the issue of entitlement to a TDIU was inferred. The Veteran was granted a TDIU effective September 1, 2016; however, the matter of entitlement to a TDIU prior to that date remains on appeal. In July 2019, the Board remanded this matter for additional development. This matter has returned to the Board for adjudication. In July 2014, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of the hearing is of record. Disability Rating for PTSD Since July 28, 2016 The Veteran has appealed for a disability rating in excess of 70 percent since July 28, 2016. Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R.§ 4.130, Diagnostic Code 9411, is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of the Veteran’s occupational and social impairment, including. Id. Under 38C.F.R.§4.130, Diagnostic Code 9411, a 50 percent rating is assigned for occupational and social impairment, with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (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 rating is assigned 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); inability to establish and maintain effective relationships. A 100 percent schedular 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; memory loss for names of close relative, own occupation or own name. Here, the record does not support a finding that the Veteran’s PTSD manifests with symptoms of the severity and frequency to result in a total occupation and social impairment since July 28, 2016. Medical records from this period indicate the Veteran received treatment at the New Jersey Health Care System and then transferred to the Gulf Coast Veterans Health Care System. He was involved in group therapy and was provided medication for both his PTSD and his associated sleep impairment. In November 2016, he was noted as having a full mood congruent affect, normal speech, no suicidal or homicidal thoughts, no delusions, no hallucinations, normal impulse control, an organized thought process, and normal cognitive functioning. In February 2017, he reported he has the occasional exacerbation of PTSD, but felt that the frequency and intensity of his symptoms had decreased with his medication and therapy. He reported in June 2017 that his medication keeps him calm, but he is irritable without them. He struggled with occasional intrusive thoughts. In September 2017, the Veteran reports mild anxiety, but every other treatment note since that date shows denial of any anxiety or depression. Records indicate persistent reports of nightmares and hypervigilant behaviors. He persistently denies any delusions or hallucinations. He is noted to have discontinued prescription sleep aids in February 2018 in favor of an over-the-counter medicine that works well for him. His thought process is noted as logical at the same appointment. In April 2018, his judgement and insight are classified as good. In September 2019, he reports he is emotionally on guard, but does not feel numb or detached from people, activities or surroundings. The Veterans symptoms and treatment noted for the period on appeal vary from the more severe symptomatology expressed in the July 2016 VA examination. However, the Board notes the examiner’s description of symptoms are largely based on treatment and examination notes from 2009 and 2010 before the Veteran was receiving consistent treatment. Those symptoms are markedly different from the more recent treatment records that indicate therapy and medication are having a positive effect on the Veteran. Moreover, even the symptoms described in that report are not indicative of a total occupational and social impairment. See July 2019 Board Decision. The Veteran’s daughter also wrote two letters to VA noting the Veteran’s symptoms. He is characterized as argumentative and disagreeable. The Veteran caused constant disruptions and eventually agreed to move out from the daughter’s house after nine years. The Veteran’s spouse reports the Veteran has been moody and argumentative for the 15 years prior to her 2017 letter. She described him having social problems and a tendency to change jobs frequently, ultimately becoming self-employed. These instances represent irritability and an inability to maintain relationships. However, the Veteran’s ability to live independently from the daughter’s home and to reach a solution to extricate himself from the house indicate the Veteran was not totally impaired in the social realm. The Board affords the most weight to the treatment records and Veteran’s self-reporting in those records from the time period on appeal. These records do not support a total occupational and social impairment. The record does not show the Veteran is grossly impaired in any functional manner. He has symptoms, but they are noted to have decreased in frequency and severity during the time on appeal due to medication and therapy received from VA. He does not pose a harm to himself or others. His memory is intact, and his judgement and insight are good. This does not mean he is asymptomatic or that the reports of his daughter or spouse are inaccurate. However, the record is not consistent with a total occupational and social impairment. Thus, a disability rating in excess of 70 percent is not warranted. REASONS FOR REMAND TDIU Prior to September 1, 2016 This matter was previously remanded in July 2019. Unfortunately, there was not substantial compliance with the remand order to request the Veteran provide documentation of marginal employment prior to September 1, 2016. The Agency of Original Jurisdiction (AOJ) did sent the Veteran three letters requesting this information; however, all three letters were sent to the wrong address. The AOJ was informed of the Veteran moving via the letter from the Veteran’s daughter in October 2017. Further, VA had an updated address documented in the record as of June 2019. The AOJ recognized the incorrect address in September 2020 but did not take any action to resend any letters requesting the employment information to the correct address before certifying the appeal back to the Board. Thus, a remand is necessary to obtain substantial compliance with the July 2019 remand order to request employment information from the Veteran. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Verify the Veteran’s current address. 2. Ask the Veteran to submit evidence documenting marginal employment, if any, prior to September 1, 2016 (i.e. employment that resulted in earned annual income not exceeding the poverty threshold for one person). Provide him with an appropriate form for eliciting income information to complete. 3. If the Veteran is unable to provide this information attempt alternative development to verify the Veteran’s income for this period. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Reed, 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.