Citation Nr: 21015138 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-08 755 DATE: March 16, 2021 ORDER From December 14, 2020 to the present, a rating of 70 percent for posttraumatic stress disorder (PTSD) with history of polysubstance abuse is granted. From December 14, 2020 to the present, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. REMANDED Entitlement to a disability rating in excess of 50 percent for PTSD prior to December 14, 2020, and in excess of 70 percent from December 14, 2020 to the present is remanded. Entitlement to a TDIU prior to December 14, 2020 is remanded. FINDINGS OF FACT 1. The evidence of record demonstrates that from December 14, 2020 to the present, the Veteran’s service-connected PTSD manifested at least in occupational and social impairment in most areas. 2. The evidence of record demonstrates that from December 14, 2020 to the present, the Veteran’s service-connected PTSD precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. From December 14, 2020 to the present, the criteria for at least a 70 percent rating for PTSD have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411. 2. From December 14, 2020 to the present, the criteria for establishing entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1967 to March 1971. These issues were remanded by the Board in October 2018 and June 2020 decisions for further development. They are returned to the Board for additional appellate review. PTSD and TDIU - December 14, 2020 to the Present Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD is currently rated 50 percent disabling under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted 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 judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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 rating is warranted 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; memory loss of names of close relatives, own occupation, or own name. 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 § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). When determining the appropriate disability evaluation to assign for psychiatric disabilities, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). As discussed in the Remand section below, additional development is required before the Veteran’s full appeal can be resolved. That said, the evidence is sufficient at this time to award an increased rating for PTSD to 70 percent, and to award a TDIU, both effective December 14, 2020. The Veteran’s claim for higher ratings at all stages during the period under review, and his claim for a TDIU prior to December 14, 2020 will be addressed at a later date, following the evidentiary development ordered by the Board below. On December 14, 2020, the Veteran underwent an psychological assessment by a private psychologist, Dr. K.M.G. In a corresponding examination report, Dr. K.M.G. opined that the Veteran’s service-connected PTSD with polysubstance abuse manifested in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. This assessment in in accord with the criteria for the assignment of a 70 percent rating under the General Rating Formula, and the Board finds no reason to call into question Dr. K.M.G.’s opinion as to the Veteran’s degree of occupational and social impairment as of the date of examination itself, December 14, 2020. The Board will accordingly award an increased rating to 70 percent, effective that date. With respect to TDIU, the Board initially notes that TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if the veteran has only one such disability, the disability must be rated at 60 percent or more, or, if the veteran has two or more disabilities, at least one disability is rated at 40 percent or more and additional disabilities bring the veteran’s combined disability rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Based on the award of an increased rating to 70 percent, the Veteran is now eligible for a TDIU on a schedular basis as of December 14, 2020. At the December 2020 private evaluation discussed above, the Veteran stated he worked off and on since 2014, last having worked in 2018 part-time in auto part retail, but that he was no longer employed. Dr. K.M.G. found the Veteran’s PTSD prevented employment, indicating that such disability severely limited his ability to control anger, control impulses, work with others, and work in a competitive work environment. After considering Dr. K.M.G.’s medical assessment and opinion, the Board finds that the evidence supports a finding that at least since December 14, 2020, the Veteran’s service-connected PTSD has prevented him from securing or following gainful employment. In sum, the evidence of record is sufficient to award a 70 percent rating for PTSD and a TDIU effective December 14, 2020 to the present. To this extent only, the Veteran’s appeal is granted. REASONS FOR REMAND While the Board regrets the additional delay, the Board believes additional evidentiary development is required before an informed decision can be made as to the remaining aspects of the Veteran’s appeal—namely, (1) whether a rating greater than 50 percent prior to December 14, 2020, and greater than 70 percent thereafter may be awarded for PTSD; and (2) whether a TDIU may be awarded prior to December 14, 2020. As discussed above, at his December 2020 evaluation with Dr. K.M.G., the Veteran indicated that while he was not currently engaged in gainful employment, he did work on and off since 2014, and last worked as an auto parts retailer for a few weeks in 2018. As it is unclear the extent to which any employment during the period under review prior to December 14, 2020 was gainful, on remand, the Veteran should be asked to submit a statement or report providing detailed information regarding employment and income history for each year in which he claims to have been precluded from maintaining gainful employment due to service-connected disabilities. In addition, Dr. K.M.G.’s December 2020 assessment provides information suggesting that the Veteran’s disability has worsened in severity since previously scheduled examinations, to include in August 2020. While the report is sufficient to support the award of an increased rating to 70 percent as of December 14, 2020, the descriptions of the symptoms in Dr. K.M.G.’s report raise the question as to whether a rating higher than 70 may be warranted. On remand, the Veteran should be scheduled for an updated examination to assess the current severity of the Veteran’s disability. This matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records, if any. 2. Request that the Veteran submit a statement or report providing detailed information regarding employment and income history for each year in which he claims to have been precluded from maintaining gainful employment due to service-connected disabilities prior to December 14, 2020. Invite the Veteran to submit additional supporting documentation including tax returns or statements from his current or former employers. For any employment that the Veteran considers to be marginal as due to a protected work environment, request that the Veteran provide a detailed explanation as to what factors characterize the work environment as protected. 3. Schedule the Veteran for a psychiatric examination to assess the current severity of his PTSD with history of polysubstance abuse. The examiner should review the Veteran’s complete medical history, to include his recent December 2020 assessment from Dr. K.M.G. To the extent possible, the examiner should summarize the progression of the Veteran’s PTSD from 2014 to the present. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. (Continued on Next Page) 4. Then, readjudicate the issues on appeal—specifically, (1) whether a rating greater than 50 percent prior to December 14, 2020, and greater than 70 percent thereafter may be awarded for PTSD; and (2) whether a TDIU may be awarded prior to December 14, 2020. If the Veteran is not eligible for a TDIU on a schedular basis after readjudication of the Veteran’s PTSD rating claim, consideration must be given as to whether referral of the TDIU claim for extraschedular consideration is warranted prior to adjudication. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, Associate 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.