Citation Nr: 21015142 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-19 618 DATE: March 16, 2021 ORDER For the period prior to December 3, 2019, entitlement to a disability rating in excess of 50 percent for PTSD is denied. For the period from December 3, 2019, entitlement to a disability rating in excess of 70 percent for PTSD is denied. REMANDED Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. Prior to December 3, 2019, the Veteran’s PTSD was manifested by symptoms productive of functional impairment comparable to no worse than occupational and social impairment with reduced reliability and productivity. 2. From December 3, 2019, the Veteran’s PTSD was manifested by symptoms productive of functional impairment comparable to no worse than occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW 1. The criteria for entitlement to an increased rating for PTSD, rated as 50 percent disabling prior to December 3, 2019, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to an increased rating for PTSD, rated as 70 percent disabling from December 3, 2019, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1992 to May 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In January 2016, the Veteran testified during a video-conference hearing before the undersigned Veterans Law Judge. In October 2020 the Board sent a letter to the Veteran letting him know that the Veterans Law Judge who held the January 2016 hearing has since retired. The Veteran responded and declined the opportunity for a new hearing. A copy of the hearing transcript is of record and has been reviewed. This case was previously remanded by the Board in June 2016 and September 2019. The case has been returned to the Board for review. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, the appellant has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP), with respect to the claims addressed herein. Although the AMA was implemented effective February 19, 2019, the Rating Decision on appeal was issued prior to that date. Accordingly, the Board will review this appeal under the existing Legacy Appeals System. 1. Entitlement to a disability rating in excess of 50 percent from January 9, 2012 to December 3, 2019, and in excess of 70 percent thereafter, for posttraumatic stress disorder (PTSD). The Veteran seeks an increased rating for his service-connected PTSD which is currently rated as 50 percent disabling prior to December 3, 2019 and 70 percent disabling from December 3, 2019. The Veteran’s claim for an increased rating was received on January 9, 2012. Therefore, the relevant rating period is from January 8, 2011, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400 (o) (2). For the period from January 8, 2011, through January 9, 2012, a higher rating will be granted if it is factually ascertainable that an increase in disability occurred, otherwise the date of receipt of the claim will be the earliest date an increase may be granted. Id. Increased Ratings for Service-Connected PTSD The Veteran’s service-connected PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders. Relevant to the issue on appeal, under the General Rating Formula for Mental Disorders, 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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 maximum 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; memory loss for names of close relatives, own occupation or own name. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, consideration is given to all symptoms of the Veteran's anxiety disorder that affect the level of occupational and social impairment. Entitlement to a disability rating in excess of 50 percent from January 9, 2012 to December 3, 2019 for PTSD. Turning to the relevant evidence of record, a February 2011 VA mental status examination noted that the Veteran was “alert, moves very slowly, casually dressed, neatly groomed, appears in pain, mood depressed, and affect congruent, normal speech pattern, thoughts organized.” The Veteran had no symptoms of suicidal or homicidal ideation or psychosis. At a May 2011 VA mental status examination, the Veteran reported Feeling depressed and hopelessness and not sleeping with the heat and attempting to use cpap, anergia, trouble concentrating…and bad dreams occur 2-3 times a week, isolation (since) no one’s at home, rare day dreams about the war and some startle (response),emotionally connect to immediate family. The treating physician noted that the Veteran was “alert, moves very slowly, casually dressed, neatly groomed, appears in pain, mood depressed, and affect congruent, normal speech pattern, thoughts organized.” The Veteran had no symptoms of passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. At a September 2011 VA mental status examination, the Veteran reported depressed and stressed out and poor sleep better with the cpap, anergia, concentrating is poor, and he had increased the xanax to 6 mg a day for 4-5 days. and I told him to stay at the recommended dose at 4 mg a day. Was in Dessert Storm, and bad dreams occur @ least 1 a week, isolation mostly, (with) some startle (response), emotionally distant with his family. The treating physician noted that the Veteran was “alert, moves very slowly, casually dressed, neatly groomed, appears sedated, mood depressed, and affect congruent, normal speech pattern, thoughts circumstantial.” The Veteran had no symptoms of passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. At a December 2011 VA mental status examination, the Veteran reported hopefulness, hopelessness, low energy, poor sleep, anxiety, recurring thoughts, isolation, avoidance, startle, and nightmares 1 or 2 times a week with sweats. The treating physician noted that the Veteran’s “appearance looks age, positive eye contact, ADLs are good, patient is cooperative. Mood is euthymic. Sensorium 2/3. Intelligence average. Thoughts/Speech organized, and goal directed. Normal rate of speech and volume is within normal limits.” The Veteran had no symptoms of delusions, hallucinations, passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. The Veteran was provided a VA PTSD examination in August 2012. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported that he had attended college, church and therapy regularly, but endorsed limited social relationships. The VA examiner diagnosed the Veteran with PTSD and depressive disorder. Upon examination, the Veteran was irritable, with variable attention and had a constricted affect. The Veteran was oriented to all spheres and his abstract reasoning appeared fair. He denied any suicidal or homicidal ideation. The VA examiner described the following symptoms: 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, impairment of short and long-term memory, and disturbances of motivation and mood. The VA examiner further described the Veteran’s occupational and social impairment as reduced reliability and productivity. At a September 2015 VA mental status examination, the Veteran reported recurring thoughts, isolation, avoidance, startle response, and nightmares. The treating physician presented with casual appearance, alert attention, direct eye contact, fluent speech, euthymic mood, affect appropriate to mood, appropriate thought content, circumstantial thought processes, judgement regarding everyday matters and orientation to place, time, and situation. The Veteran had no symptoms of delusions, hallucinations, passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. At a May 2016 VA mental status examination, the Veteran presented with casual appearance, alert attention, direct eye contact, fluent speech, euthymic mood, affect appropriate to mood, appropriate thought content, circumstantial thought processes, judgement regarding everyday matters and orientation to place, time, and situation. The Veteran had no symptoms of delusions, hallucinations, passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. The Veteran was provided a VA medical examination in February 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner diagnosed the Veteran with PTSD and depressive disorder. Upon examination, the Veteran was open and cooperative, but had a flattened affect. The Veteran was oriented to all spheres and his attention and concentration were intact. The Veteran’s memory for remote, recent and immediate events was intact. The Veteran stated that he reacts to strange noises and checks the doors to make sure they are locked. He reported that he hears noises similar to combat while he sleeps. The VA examiner described the following symptoms: 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, and disturbances of motivation and mood. The VA examiner further described the Veteran’s symptoms as recurring and distressing memories or dreams, avoidance, hypervigilance, and exaggerated startle response, with social isolation, irritability, and sleep disturbance as potentially overlapping symptoms of the depressive disorder. The VA examiner further described the Veteran’s occupational and social impairment as reduced reliability and productivity. At a June 2017 VA mental status examination, the Veteran presented with casual appearance, a cooperative demeanor, alert attention, direct eye contact, fluent speech, euthymic mood, affect appropriate to mood, appropriate thought content, judgement regarding everyday matters and orientation to place, time, and situation. The Veteran had no symptoms of delusions, hallucinations, passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. At an October 2017 VA mental status examination, the Veteran presented with casual appearance, a cooperative demeanor, alert attention, direct eye contact, fluent speech, euthymic mood, affect appropriate to mood, appropriate thought content, goal directed thought processes, judgement regarding everyday matters and orientation to place, time, and situation. The Veteran had no symptoms of delusions, hallucinations, passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. At a February 2018 VA mental status examination, the Veteran presented with casual appearance, a cooperative demeanor, alert attention, direct eye contact, fluent speech, euthymic mood, appropriate thought content, goal directed thought processes, judgement regarding everyday matters and orientation to place, time, and situation. The Veteran had no symptoms of delusions, hallucinations, passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. At a July 2018 VA mental status examination, the Veteran presented with casual appearance, a cooperative demeanor, alert attention, direct eye contact, fluent speech, euthymic mood, affect appropriate to mood, appropriate thought content, goal directed thought processes, judgement regarding everyday matters and orientation to place, time, and situation. The Veteran had no symptoms of delusions, hallucinations, passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. At a November 2018 VA mental status examination, the Veteran presented with casual appearance, a cooperative demeanor, alert attention, direct eye contact, fluent speech, euthymic mood, affect appropriate to mood, appropriate thought content, goal directed thought processes, judgement regarding everyday matters and orientation to place, time, and situation. The Veteran had no symptoms of delusions, hallucinations, passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. At a July 2018 VA mental status examination, the Veteran presented with casual appearance, a cooperative demeanor, alert attention, direct eye contact, fluent speech, euthymic mood, affect appropriate to mood, appropriate thought content, goal directed thought processes, judgement regarding everyday matters and orientation to place, time, and situation. The Veteran had no symptoms of delusions, hallucinations, passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. At a May 2019 VA mental status examination, the Veteran presented with casual appearance, a cooperative demeanor, alert attention, direct eye contact, fluent speech, euthymic mood, affect appropriate to mood, appropriate thought content, goal directed thought processes, judgement regarding everyday matters and orientation to place, time, and situation. The Veteran had no symptoms of delusions, hallucinations, passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. The Veteran was provided a VA medical examination in December 2019. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner diagnosed the Veteran with PTSD. Upon examination, the Veteran reported sleep disturbance, nightmares 4-7 nights weekly, intrusive thoughts, flashbacks triggered by certain sights/sounds/scents, irritability and easily angered, anger outbursts, increased anxiety, exaggerated startle response, avoidance of crowds, avoidance of people/things that remind him of his trauma stressors, hypervigilance in the environment, always expects something will happen, suspiciousness of intentions of others, suspiciousness of objects along the roadway, forgetfulness, poor attention and concentration, distractibility, withdrawal from family and friends, loss of interest in previously enjoyed activities, loss of motivation to complete activities of daily living, periods of anhedonia, crying spells, episodes of self-mutilation with cigarettes (burns himself on his stomach), vague suicidal ideation without a cogent plan. Veteran reported panic attacks at a frequency of 1-2 times daily which included shortness of breath, sweating, tremor, racing heart, fear and avoidance. The VA examiner described the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, and disturbances of motivation and mood. The VA examiner further described the Veteran’s occupational and social impairment as reduced reliability and productivity. At a February 2020 VA mental status examination, the Veteran presented with casual appearance, a cooperative and reticent demeanor, alert attention, direct eye contact, fluent, slow and sparse speech, euthymic mood, affect appropriate to mood and constricted, appropriate thought content, goal directed thought processes, judgement regarding everyday matters and orientation to place, time, and situation. The Veteran had no symptoms of delusions, hallucinations, passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. At a May 2020 VA mental status examination, the Veteran presented with casual appearance, a cooperative demeanor, alert attention, fluent speech, appropriate thought content, goal directed thought processes, judgement regarding everyday matters and orientation to place, time, and situation. The Veteran had no symptoms of delusions, hallucinations, passive or active thoughts of suicidal or homicidal ideation, and no indication of psychosis. Based on the foregoing, prior to December 3, 2019, a rating in excess of 50 percent for PTSD is not warranted. The Board finds that the next higher rating of 70 percent is not warranted because the Veteran’s functional impairment associated with his PTSD has not been shown to be comparable to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. The medical evidence of record shows symptoms of depressed mood, anxiety, sleep impairment, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, which are considered by the assigned 50 percent rating. The medical evidence also shows that the Veteran was consistently reported as oriented to person, place, and time and was able to function independently. In treatment notes and VA examinations, the Veteran reported he has some memory loss and occasionally forgets to do routine tasks. He further reported that he is unable to work and suffers from panic attacks, sleep disturbances, anxiety, intermittent panic attacks, difficulty concentrating and feelings of hopelessness. The Board notes that symptoms such as panic attacks, memory impairment, sleep disturbances and anxiety are considered by the 50 percent disability rating. Additionally, the Board finds that, prior to December 3, 2019, the Veteran's PTSD symptoms were not productive of functional impairment more comparable to deficiencies in most areas such as work, school, family relations, thinking or mood. The Veteran routinely denied suicidal or homicidal ideations. The Board notes that the Veteran expressed suicidal ideation on one occasion, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. On August 6, 2014, the Veteran was admitted to the hospital for worsening depressive symptoms and suicidal ideation. He indicated that “all I can think about is suicide” and stated that he had a plan to “run his car into something on the way home.” The Veteran indicated that the symptoms were “associated with the recent termination of the one-year relationship with his fiancé.” Patient also reported that the symptoms increased as a result of a change in his pain medications. A treating psychiatrist determined that the Veteran was a moderate risk of suicide upon admission. Following admission, August 2014 treatment notes indicate that Veteran was noted to be “alert and easily engaged. Energy level is within normal limits. Speech is fluent and of normal rate, rhythm, and intonation. Affect is blunted and mood is depressed. He occasionally becomes tearful. Thinking is organized, coherent, and goal directed. There are no manifestations of paranoia, delusions, or hallucinations. His demeanor is cooperative and pleasant.” The Veteran also denied suicidal ideation. He was discharged on August 15, 2014. Since this incident, the Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the August 2012 and February 2017 VA examinations. While the Veteran did experience symptoms contemplated by a 70 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. In addition, the Veteran is not entitled to a 100 percent rating for any period on appeal. The evidence does not demonstrate total occupational and social impairment as a result of his service-connected PTSD. The Veteran’s disability has not manifested in symptoms productive of functional impairment comparable to such level of impairment. As examples, there has been no demonstration of functional impairment comparable to 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. The Veteran has been oriented on examination and has not reported any homicidal ideation. The Veteran has been independent in his activities of daily living and has fully engaged in tai chi and yoga, as part of treatment for an unrelated disability, and reported that he engaged in social interactions from time to time. As such, the Board finds that a 100 percent rating is not warranted for any period on appeal. As the evidence does not reflect total occupational and social impairment, a 100 percent rating is not warranted. 38 C.F.R. § 4.130. There is no identifiable period that would warrant an increased rating in excess of 50 percent prior to December 3, 2019 and no identifiable period that would warrant an increased rating in excess of 70 percent from December 3, 2019. Therefore, staged ratings are not appropriate, other than the staged ratings currently assigned. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In light of the above, the Board finds that the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is remanded. The Veteran also seeks entitlement to a TDIU on the basis that he is unable to obtain and maintain substantially gainful employment due to the severity of his service-connected disabilities. A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. It is further provided that the existence or degree of nonservice-connected disability, or previous employability status, will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency, such service-connected disabilities render the Veteran unemployable. Marginal employment, defined as when a Veteran’s earned annual income does not exceed the poverty threshold for one person, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. Here, in his January 2016 Board hearing, the Veteran indicated that his PTSD prevented him from securing or following a substantially gainful occupation. Additionally, VA treatment records indicate that the Veteran has asserted that his PTSD, along with medications for the treatment of PTSD and several non-service-connected disabilities, have caused him to become unemployable. As an initial matter, the Board notes that an adequate evidentiary record relevant to a claim of entitlement to a TDIU has not been developed. While a formal application for TDIU is not required, a VA Form 21-8940 should be requested from the Veteran to ensure that all factors for consideration in such a claim have been addressed. Additional development is also required regarding the Veteran’s previous employment, income, and education level. Additionally, the Board notes that the Veteran does not meet the schedular requirement for a TDIU for the period prior to December 3, 2019. His combined rating was 50 percent, effective from June 24, 2009. Therefore, he did not satisfy the schedular criteria set forth in 38 C.F.R. § 4.16(a). Although the percentage requirements are not met, entitlement to benefits on an extraschedular basis may also be awarded when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, and consideration is given to the Veteran’s background including employment and educational history. 38 C.F.R. § 4.16(b). In determining whether employability exists, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. As such, by statutory requirement, as the Veteran does not meet the threshold schedular criteria for a TDIU, the proper procedure is to refer the matter to the Director of Compensation Service for extraschedular consideration. Thereafter, the Board has jurisdiction to review the Director's determination. See Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that “the Board is required to obtain the Director's decision before the Board may award extraschedular TDIU”). The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to submit a completed TDIU application form (VA Form 21-8940), as well as appropriate notice of the evidence necessary to substantiate a claim for TDIU benefits, and undertake any development deemed necessary with respect to the Veteran's TDIU claim. 2. The RO will provide the Veteran with an examination to address the functional impact that his service-connected disabilities have on his ability to secure and follow a substantially gainful occupation. When addressing the functional impact, the examiner should consider the Veteran’s occupational and educational history but must not consider the Veteran’s age or any non-service connected disability. 3. Following completion of the above requested action, readjudicate the issue of entitlement to a TDIU, to include whether referral to the Director of Compensation Service the matter of whether entitlement to a TDIU is warranted on an extraschedular basis at any point during the period on appeal, pursuant to 38 C.F.R. § 4.16(b). 4. If the benefit sought is not granted, then issue the Veteran and his agent a Supplemental Statement of the Case and afford the appropriate period to respond. Thereafter, return the case to the Board as appropriate. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.