Citation Nr: 21015848 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-22 291A DATE: March 18, 2021 ORDER Entitlement to an initial increased rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) prior to January 15, 2020 is granted. Entitlement to an increased rating greater than 70 percent for PTSD from January 15, 2020 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT During the entire appeal period, the Veteran’s PTSD was manifested by symptoms resulting in occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. The Veteran’s PTSD was not manifested by symptoms resulting in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial increased disability rating of 70 percent, but no higher, for PTSD prior to January 15, 2020 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for an increased disability rating greater than 70 percent for PTSD from January 15, 2020 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from December 1969 to November 1972. He appeals a November 2009 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to an initial rating greater than 50 percent for PTSD. In February 2019, the Board of Veterans’ Appeals (Board) remanded the claim for further development. Subsequent to this development, the AOJ increased his PTSD rating to 70 percent, effective January 15, 2020. See June 2020 rating decision. The claim is now back before the Board. Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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 for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran contends his service-connected PTSD is more severe than his 50 percent rating prior to January 15, 2020 and 70 percent thereafter would indicate under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, 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 judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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. Id. 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 for names of close relatives, own occupation or name. Id. For a PTSD rating, the Board must conduct a holistic analysis that considers the severity, frequency, and duration of all associated symptoms with the Veteran’s level of occupational and social impairment and not solely focus on the examiner’s assessment at the moment of an examination. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.126(a). Then, the Board must determine whether the Veteran’s symptomatology caused a level of impairment in “most areas” applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). At the Veteran’s first VA examination of the appeal period, the June 2009 VA examiner found the Veteran had symptoms of depression, difficulty controlling his anger and irritability, chronic sleep impairment, and “problems with his memory and concentration.” His symptoms “interfered with his ability to function effectively at work and in his interpersonal relationships,” “impaired his thought process and his ability to effectively communicate with others,” and created “difficulty establishing and maintaining intimate social relationships.” See June 2009 VA examination report. In April 2016, a VA examiner found the Veteran exhibited the same symptoms but also had anxiety with panic attacks that occurred weekly or less, along with suicidal ideation. These two symptoms were not addressed by the June 2009 VA examiner. Then, in January 2020, a VA examiner found the same PTSD symptoms as those found at the April 2016 examination, but the examiner noted the Veteran’s symptoms created difficulty adapting to stressful circumstances. This was also a symptom noted by the June 2009 VA examiner. Essentially, these three VA examiners found the Veteran suffered from the same symptoms during the entire appeal period. After a review of the entire medical and lay evidence of record, in conjunction with the findings of the three VA examinations, all discussed in detail below, the Board finds the Veteran’s psychiatric symptoms warrant a 70 percent disability rating, but no higher, throughout the entire appeal period. Socially, the Veteran reported he was in his second marriage, lived with his wife during the appeal period, and had one adult son. See June 2009 and January 2020 VA examination reports. While the Veteran noted his wife supported him, he regularly confirmed a “rocky relationship through the years” and the record reflects his wife left him multiple times during the appeal period. See, e.g., January 2015 VA treatment records; January 2020 VA examination report (“she has left him three times”). Although the Veteran reported “not really [having] friends,” he did acknowledge having military friends, a few close friends, and a relationship with his mother and stepfather. See, e.g., July 2013 VA treatment records; January 2020 VA examination report; September 2014 VA treatment records (helps take care [of] elderly parents”); June 2016 VA treatment records (“several friends”); August 2017 VA treatment records (“limited hobbies and friends”). For example, in April 2020, the Veteran stated a “close friend of 30 years passed away” recently. See April 2020 VA treatment records. Thus, although the Veteran’s PTSD symptoms make it difficult to establish and maintain relationships, the record does not reflect he is unable to do so. He therefore does not meet the criteria for total social impairment. Additionally, the Veteran reported, and the medical records reflect, impaired impulse control during the entire appeal period, but the record does not reflect the Veteran’s general behavior was grossly inappropriate. See June 2009 VA examination report (“anger and irritability”); September 2013 VA treatment records (irritability and anger); September 2014 VA treatment records (“mediation is helping with anger/irritability”); January 2015 VA treatment records (“anger and irritability that have been constant and affected the family”); April 2016 and January 2020 VA examination reports (“irritable behavior and angry outbursts;” “wife is concerned about his temper”). The Veteran stated his “unprovoked irritability and suspiciousness have a profound impact on [his] ability to make a living.” See May 2012 VA Form 9. In a work environment, the Veteran noted his irritability caused difficulty getting along with “bosses, supervisors, fellow workers, and customers.” See June 2009 VA examination report. Despite these incidents of impaired impulse control, the Veteran’s VA psychiatrist regularly noted the Veteran had “fair judgment,” generally functioning behavior, and the record does not reflect any physical violence or relevant legal issues during the appeal period. See, e.g., January 2015 VA treatment records; January 2020 VA examination report. Thus, the record does not reflect the Veteran has grossly inappropriate behavior, one of the criteria considered for a 100 percent rating. Further, the Veteran also expressed passive suicidal ideation, but consistently denied any intent or plan during the appeal period. See, e.g., July 2012 VA treatment records (“suicidal ideation was a long time ago and does not want to discuss it”); April 2016 and January 2020 VA examination reports (“passive suicidal ideation without a plan”). More frequently, the Veteran denied any suicidal or homicidal ideation. See, e.g., July 2012 VA treatment records; March 2014 VA treatment records; August 2017 VA treatment records. Importantly, VA examiners and the Veteran’s numerous physicians have not found the Veteran a persistent danger to himself or others, another criteria considered from a 100 percent rating. Finally, the record reflects the Veteran had no gross impairment in thought or communication, was properly oriented during the entire appeal period, and denied suffering from any delusions or hallucinations. See, e.g., January 2020 VA examination report. Also, the record reflects the Veteran has short-term memory loss and distractibility, but it is not so severe that he forgets his own name. See, e.g., January 2015 VA treatment records; April 2016 and January 2020 VA examination reports (mild memory loss). There is no indication the Veteran is unable to perform activities of daily living (ADLs) and physicians consistently found the Veteran’s appearance and hygiene appropriate. See, e.g., July 2012 VA treatment records (“well groomed”); March 2014 VA treatment records (“normal dress/hygiene”); June 2016 VA treatment records (“normal dress/hygiene”); January 2020 VA examination report (“casually dressed with appropriate hygiene”). Overall, the record does not reflect the Veteran’s symptoms reach the severity, duration, or frequency required for a rating over 70 percent. In summation, the Veteran’s psychiatric symptoms render it difficult for him to establish and maintain effective relationships. He noted suicidal ideation with impaired impulse control during the appeal period, but not to the extent he was a persistent danger to himself or others. He also does not have grossly inappropriate behavior or complain of delusions or hallucinations during the appeal period. He is properly oriented and does not exhibit gross impairment in thought or communication. Finally, the Veteran’s memory loss is not so severe he cannot remember his own name or hardwired information, and he retains the ability to perform ADLs. Thus, while the Veteran’s symptoms are undoubtedly severe, they do not rise to the rating criteria for total social and occupational impairment, the next highest rating. As such, the Board grants entitlement to an increased rating of 70 percent, but no higher, for PTSD prior to January 15, 2020 and denies a rating greater than 70 percent from January 15, 2020. REASONS FOR REMAND The Veteran contends his service-connected disabilities prevent him from maintaining a substantially gainful occupation. See, e.g., May 2016 VA Form 21-526EZ (“not been substantially gainfully employed for the past 6 months due to both my physical and mental disabilities”). Thus, the issue of entitlement to TDIU has been raised in this case as part of the claim for an increased rating and will be considered by the Board for the entire appeal period. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The Veteran has not worked during at least part of the appeal period; however, the record suggests he has had substantial employment during some of the appeal period. For example, at the June 2009 VA examination, the Veteran noted he was working as a realtor. September 2013 VA treatment records note the Veteran was “doing okay at work.” September 2014 VA treatment records reflect the Veteran worked as a realtor and helped take care of his elderly parents. In June 2015, the Veteran still reported working as a realtor. See December 2015 VA treatment records. In December 2019, the Veteran reported he did “not like coming into the clinic partly because of his work schedule.” See December 2019 VA treatment records. And at the January 2020 VA examination, the Veteran noted he “works twenty to thirty hours a week” at his wife’s housekeeping business “for the last four to five years,” which “is relatively stress free.” The Veteran contends “it is too hard” to work as a realtor but he has maintained his real estate license during the entire appeal period. See January 2020 VA examination report. The Board finds it currently unclear from the record what periods of the appeal period the Veteran was employed and whether his employment as a realtor or housecleaner was marginal employment or employment in a protected work environment. Thus, additional development is required. On remand, the Veteran’s work history should be obtained and the claim developed to consider the Veteran’s entitlement to TDIU throughout the duration of his appeal for the initial increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The matters are REMANDED for the following action: 1. Obtain the Veteran’s work history during the appeal period. Such history should include the number of hours worked per week, the positions held, and wages earned. Any employment accommodations should also be outlined. 2. After the above has been completed together with any additional development indicated by the record, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.