Citation Nr: 21015890 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-40 338A DATE: March 18, 2021 ORDER Entitlement to a rating in excess of 30 percent prior to October 8, 2013, for posttraumatic stress disorder (PTSD) is denied. Entitlement to a rating of 50 percent, but not higher, beginning October 8, 2013, for PTSD is granted. Entitlement to a rating of 100 percent beginning April 5, 2016, for PTSD is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to April 5, 2016, is remanded. FINDINGS OF FACT 1. Prior to October 8, 2013, the occupational and social impairment resulting from the Veteran’s PTSD was manifested by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Beginning October 8, 2013, the occupational and social impairment resulting from the Veteran’s PTSD was manifested by reduced reliability and productivity. 3. Beginning April 5, 2016, the Veteran has been totally occupationally and socially impaired as a result of his PTSD. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD have not been met prior to October 8, 2013. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for a rating of 50 percent, but not higher, for PTSD have been met beginning October 8, 2013. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2019). 3. The criteria for a rating of 100 percent for PTSD have been met beginning April 5, 2016. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2018, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. The Board notes that in a September 2019 rating decision, the Veteran was assigned a 70 percent rating for his PTSD, effective April 5, 2016. That does not constitute a complete grant of the benefit sought on appeal. However, the Board has limited its consideration accordingly. Additionally, in a March 2020 rating decision, the Veteran was granted entitlement to a TDIU, effective April 5, 2016. That effective date does not represent the complete period on appeal. As such, the grant of a TDIU from April 5, 2016, is not a complete grant of the benefit sought. However, the Board has limited its consideration accordingly. Increased Rating – PTSD The Veteran has asserted that he should have higher ratings for his PTSD as his symptoms are worse than those contemplated by the currently assigned ratings. In August 2013, the Veteran was seen by his primary care provider at the VA Medical Center. At that time, the Veteran screened positive for PTSD, and he reported that he had noticed old, traumatic memories were coming back more often lately. At a September 2013 VA examination, the Veteran reported a stable marriage to his spouse of 43 years, and reported that they had a good relationship. The Veteran also reported good relationships with his two adult daughters, his one grandson, and his siblings. He reported that he and his spouse enjoyed going to car shows together, going out to eat, and occasionally going fishing. They had friends they enjoyed playing board games and card games with. The Veteran reported working on his antique automobile and occasionally taking it to car shows. He stated he loved listening to music, and he and his spouse enjoyed being outdoors. The Veteran reported that he stopped working due to gout, but did not officially retire until he was 65. At the time of the examination, the Veteran reported moderate intrusive recollections, mild flashbacks, mild exposure distress, mild physiological reactivity, mild avoidance, mild sleep impairment, mild irritability, and mild hypervigilance. The Veteran specifically denied nightmares, suicidal or homicidal ideation, hallucinations, delusional thought content, obsessive thoughts, and compulsive actions. Upon mental status examination, the Veteran denied current plans or intent to commit acts of self-or other-directed violence. He ambulated independently with a slow, though steady, gait. His demeanor during the examination was cooperative, courteous, and friendly, and he showed a good faith effort at answering all questions posed to him. The Veteran’s affect range was constricted (anxious), though not at all flat. He was dressed casually and appropriately for the weather. His appearance indicated good attention to personal hygiene, and he appeared his documented age. The Veteran presented average intelligence, consistent with his education and occupational background. He evidenced average alertness and level of consciousness throughout interview, and was oriented to person, place, and time. The Veteran’s thought processes were linear, indicating no active symptoms of thought disorder. His eye contact was good. His speech was of normal rate, rhythm, and volume, and his judgment was intact. The examiner confirmed the diagnosis of PTSD. The examiner found that the occupational and social impairment from the Veteran’s PTSD was manifested by 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. Of record is an October 2013 psychiatric treatment report in which the Veteran reports that his PTSD had worsened. After evaluation, the treating physician expanded the Veteran’s diagnosis to include agoraphobia. In April 2016, the Veteran received emergency medical services at Parkwest Medical Center in relation to his PTSD. At a September 2019 VA examination, the Veteran reported being married for the past 45 or 46 years, and lived with his supportive wife. He reported that he had two adult children. The Veteran reported that he could not remember the exact year he stopped working as he had trouble recalling dates and times, but that he had stopped working and retired at age 62. The examiner noted the symptoms associated with the Veteran’s PTSD as follows: depressed mood; anxiety; panic attacks occurring weekly, or less often; near continuous panic or depression affecting his ability to function independently, appropriately, and effectively; chronic sleep impairment; flattened affect; circumstantial, circumlocutory or stereo-typed speech; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work and work like settings; inability to establish and maintain effective relationships; and, impaired impulse control, such as unprovoked irritability with periods of violence. It was noted that the Veteran did not leave the house and stayed at home isolated while his wife performed all chores and activities outside the house. He reported that he would occasionally go to a restaurant, but would sit with his back to the wall. He reported hypervigilance, and reported that he had hit other people when startled or when someone brushed against him. The Veteran reported that he was easily upset by relatively small things. The Veteran reported that he was very claustrophobic and avoided elevators and small spaces of any kind, as he would experience panic attacks when confronted with those situations. He reported that he only felt any level of calm when outside in his back yard. Upon mental status examination, the Veteran was alert, oriented to all spheres, dressed casually, and displayed good hygiene and grooming. His affect was anxious and depressed, and his mood was congruent. The Veteran’s insight and judgement were intact. His concentration was poor, and his memory was fair. The examiner found that the occupational and social impairment from the Veteran’s PTSD was manifested by deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood The Board finds that the Veteran is not entitled to a rating in excess of 30 percent for his PTSD prior to October 8, 2013. In this regard, the Veteran did not have social and occupational impairment manifested by reduced reliability and productivity prior to October 8, 2013. In fact, the Veteran reported a good relationship with his wife and children, he reported that he was friendly with the neighbors and had several friends. He denied having nightmares or flashbacks. He was not a danger to himself or others. He did not have impairment in speech, thought processes, or communication. His impulse control and judgment were not impaired. While the Veteran did prefer to be on his own, there is no indication that he had difficulty maintaining social and occupational relationships. Additionally, the Veteran did not have delusions, hallucinations, hypervigilance, or obsessional rituals. Therefore, the Board finds that a rating in excess of 30 percent for PTSD prior to October 8, 2013, is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2019). The Board finds that the Veteran is entitled to a rating of 50 percent for his PTSD beginning October 8, 2013, the day of the treatment record where the Veteran indicated his PTSD was worse. In this regard, the Veteran is shown to have occupational and social impairment with reduced reliability and productivity from that date. The October 2013 treatment report shows that the Veteran’s was socializing less and had increased isolation. He was noted to have agoraphobia, increased anxiety, memory loss, and loss of concentration. Therefore, the Board finds that a rating of 50 percent is warranted from October 8, 2013. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2019). Consideration has been given to assigning a higher rating from October 8, 2013. However, the Veteran has not been shown to have occupational and social impairment with deficiencies in most areas. In this regard, there is no indication from the record that the Veteran has obsessional rituals which interfered with routine activities. His speech was not shown to be abnormal. While he experienced anxiety, it was not been shown to be near-continuous or affecting his ability to function independently, appropriately, or effectively. His reported symptoms were not noted to result in periods of unprovoked violence. He has not been shown to be disoriented or to neglect his personal appearance or hygiene. Additionally, the Veteran was not shown to be unable to establish and maintain effective relationships. In fact, the Veteran reported a good relationship with his wife and children. The Veteran was not considered to be a danger to himself or others, and had consistently denied suicidal ideations. Therefore, the Board finds that when the Veteran’s psychiatric disability picture is considered as a whole, his symptoms are not of such a severity so as to warrant the assignment of a higher rating. Therefore, a rating in excess of 50 percent for PTSD from October 8, 2013, is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2019). The Board finds that the Veteran is entitled to a rating of 100 percent for his PTSD beginning April 5, 2016. In this regard, the Veteran’s PTSD has been manifested by total social and occupational impairment. The Veteran has shown to have significant symptoms of social isolation, irritability, depressed mood, anxiety, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, decreased motivation, and impaired impulse control. The Veteran does not appear to have significant social interaction outside the home. As such, the Board finds that the Veteran’s symptoms more closely approximate those contemplated by a 100 percent rating for the entire period on appeal. Therefore, a rating of 100 percent is warranted beginning April 5, 2016. 38 C.F.R. § § 4.130, Diagnostic Code 9411 (2019). The Board acknowledges that the results of the VA examinations and the symptoms described in the treatment records do not indicate that the Veteran has experienced all of the symptoms associated with a 100 percent rating for PTSD. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board’s finding of total social and occupational impairment is sufficient to warrant a 100 percent rating from April 5, 2016, even though all the specific symptoms listed for a 100 percent rating are not manifested. REASONS FOR REMAND Entitlement to a TDIU prior to April 5, 2016 The Board notes that the Veteran is seeking entitlement to a TDIU prior to April 5, 2016. A review of the record shows that prior to that date, the Veteran did not meet the schedular criteria for assignment of a TDIU. However, in the decision above, the Board granted entitlement to increased ratings for the Veteran’s service-connected PTSD. Therefore, the Board finds that the issue of entitlement to a TDIU prior to April 5, 2016, should be readjudicated following the implementation of the Board’s decisions above. In the event that the ratings assigned for the service-connected disabilities do not cause the Veteran to meet the schedular criteria for assignment of a TDIU for the entire appellate period, the Board concludes that the facts of this case meet the criteria for submission of the Veteran’s claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. Therefore, such development should be conducted as appropriate. Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issues on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Following implementation of the Board’s decisions above, in the event that the Veteran does not meet the schedular criteria for assignment of a TDIU prior to April 5, 2016, the Veteran’s claim should be referred to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). 3. Then, readjudicate the remaining claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the claim to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, 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.