Citation Nr: 21015997 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 11-07 230 DATE: March 19, 2021 ORDER Entitlement to a disability rating in excess of 70 percent prior to March 20, 2014 for posttraumatic stress disorder (PTSD) is denied. Entitlement to a disability rating of 100 percent from March 20, 2014 to August 11, 2020 for PTSD is granted. Entitlement to individual unemployability due to service-connected disability (TDIU) prior to January 1, 2011 is dismissed. FINDINGS OF FACT 1. Prior to March 20, 2014, the Veteran’s had demonstrated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood due to his PTSD. 2. From March 20, 2014, the Veteran has demonstrated total occupational and social impairment due to his PTSD. 3. The Veteran explicitly withdrew his claim for TDIU by written statement on December 18, 2015 and the issue was dismissed by the Board in June 2016. 4. The Veteran submitted an application for TDIU on October 31, 2017. 5. The November 2020 rating decision granting entitlement to TDIU effective January 1, 2011 is considered a full grant of the benefits sought on appeal. CONCLUSIONS OF LAW 1. For the period prior to March 20, 2014, 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. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. For the period from March 20, 2014 to August 11, 2020, the criteria for a 100 percent disability rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for dismissal of the issue of entitlement to TDIU have been met. 38 U.S.C. §§ 511(a), 7104, 7105; 38 C.F.R. §§ 4.16, 20.101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to September 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2012 and November 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, the Veteran testified at a hearing at the RO before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In a February 2020 letter, the Veteran was informed that the VLJ who held the December 2015 hearing is no longer employed at the Board and was offered the opportunity to have another hearing by a VLJ who would adjudicate the appeal. In a response received in February 2020, the Veteran indicated that he did not want to appear at another Board hearing. In March 2017, the Board, in pertinent part, denied a rating in excess of 70 percent for PTSD, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2019 Memorandum Decision, the Court vacated the Board’s March 2017 decision to the extent it denied an increased rating for PTSD and remanded the claim for action consistent with Court’s Memorandum Decision. In March 2020, the Board remanded the case for further development. The requested development has been completed to the extent possible, and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In a November 2020 rating decision, the RO increased the Veteran’s rating for PTSD to 100 percent disabling, effective August 12, 2020. As the grant of a 100 percent rating is not effective for the entire appeal period, it does not constitute a full grant of the benefits sought and the increased rating issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). The 100 percent rating from August 12, 2020 is the maximum rating available and is therefore not on appeal. Id. 1. Entitlement to a disability rating in excess of 70 percent prior to March 20, 2014 for PTSD is denied. 2. Entitlement to a disability rating in excess of 70 percent from March 20, 2014 to August 11, 2020 for PTSD is granted. The Veteran is seeking an increased disability rating for his service-connected PTSD. Specifically, the Veteran contends the severity of his PTSD is not accurately reflected by his assigned disability rating. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that the Veteran’s diagnosis of PTSD is evaluated under Diagnostic Code 9411 and is rated according to the General Rating Formula for Mental Disorders. Pursuant to the rating formula, a 70 percent disability 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); and inability to establish and maintain effective relationships. A 100 percent disability 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; and memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In an October 2017 Brief for Appellant submitted to the Court, the Veteran’s attorney asserted that the Board failed to consider the Veteran’s protected work environment and the average person standard in reaching its conclusion that the Veteran was not totally occupationally impaired, or evidence supporting that the Veteran was totally socially impaired. In the May 2019 Memorandum Decision, the Court determined that the Board had not addressed evidence favorable to the Veteran or whether the evidence demonstrated occupational impairment beyond that contemplated by his 70 percent disability rating. In weighing the evidence, the Board finds that prior to March 20, 2014, the symptomatology associated with the Veteran’s PTSD more closely approximates occupational and social impairment with deficiencies in most areas, which is consistent with a 70 percent disability rating. Specifically, the Veteran’s PTSD has not been manifested by symptomatology more nearly approximating total and occupational social impairment. The evidence of record does not support findings of 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, disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name resulting in total occupational and social impairment. Prior to March 20, 2014, the evidence does not reflect total occupational and social impairment. While there is evidence to support the Veteran’s attorney’s assertions that the Veteran is totally occupationally impaired, total social impairment must be demonstrated as well to warrant a 100 percent disability rating under Diagnostic Code 9411. Specifically, an April 2010 treatment record noted that the Veteran denied “partner relational problems.” In a July 2012 VA examination, the Veteran reported he no longer got along with his siblings and that he did not have any friends. However, he also noted that he sometimes hung around with men from the VFW after they did a military funeral. Further, the Veteran reported that he had conflicts with his wife and believed he caused her a great deal of stress. He added that he had three children and got along well with them. A July 2013 treatment record related to his diabetes indicated that the Veteran had attended a family function where consumed a great deal of fresh fruit. In a December 2013 VA examination, the Veteran reported that he had no friends that came to see him; however, he did have a friend he spoke to over the phone but had not seen in person for two and a half years. While the Board acknowledges that the severity of the Veteran’s PTSD has undoubtedly resulted in a large degree of social impairment, it falls short of total social impairment. Although stressed, the Veteran was able to maintain his marriage for over 35 years and got along with his children. While the Veteran did not consider himself to have friends, he noted he had a friend he would speak to over the phone and socially interacted with men from the VFW, albeit infrequently. The Board finds that this level of impairment, an inability to establish and maintain effective relationships, is contemplated by a 70 percent disability rating. As noted, both total occupational and total social impairment must be shown for entitlement to a 100 percent rating. Accordingly, the Board finds that a disability rating in excess of 70 percent following March 20, 2014 is not warranted. From March 20, 2014, resolving reasonable doubt in favor of the Veteran, the Board finds that his PTSD manifests in total occupational and social impairment warranting a 100 percent disability rating. During this period, the evidence demonstrates that the Veteran’s few and strained relationships deteriorated. He had no friends and experienced increased conflict with his wife and children. Further, the Veteran’s record demonstrates total occupational impairment in that he was only able to maintain some type of employment due to his familial ties to the business. As the record reflects both total occupational and total social impairment, the Board finds that a 100 percent disability rating from March 20, 2014 to August 11, 2020 is warranted. 3. Entitlement to TDIU prior to January 1, 2011 is dismissed. The Board has jurisdiction where there is a question of law or fact necessary to a decision by the Secretary of VA under a law that affects the provision of benefits administered by VA. See 38 U.S.C. § 7104; 38 C.F.R. § 20.101. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 38 U.S.C. § 7105(d)(5). The Board finds that a review of the adjudicative history is helpful in understanding the status of the Veteran’s claim. While a claim for an increased rating for service-connected PTSD was pending, the Veteran submitted a claim for TDIU in August 2014. The application asserted that the Veteran had last worked full-time on December 31, 2010 and was seeking total disability due to his hypertension, diabetes, and sleep apnea. These conditions were on appeal, but were not service connected at the time, nor are they presently. The Veteran had earned $24,000 in 2010, his last year of employment. A January 2015 rating decision continued the Veteran’s service-connected PTSD at 70 percent and denied entitlement to TDIU. A timely notice of disagreement (NOD) was filed in February 2015 and the issue was ultimately appealed to the Board. In a December 2015 Board hearing, the Veteran hesitated to continue his appeal for TDIU. He testified that a representative at the Veterans Service Organization (VSO) suggested that he claim TDIU but stated that he did not want to get anyone into trouble. The Veteran noted, “[a]ll I wanted to do is just to get my, to get my hundred percent and still be able to work, ‘cause if I don’t work I’m gonna sit around the house, I’m gonna go probably crazy.” The Veteran testified that he believed he had signed something at the RO a few weeks ago withdrawing his claim for TDIU but he was not sure it was submitted into the system. Following questioning about the Veteran’s employment history, the presiding VLJ suggested that the Veteran consult with his representative in order to make an informed decision on whether he wished to pursue his appeal. Subsequent to the Board hearing, VA received a December 2015 statement from the Veteran withdrawing his claim for TDIU. In June 2016, the Board honored the Veteran’s request and dismissed his claim of entitlement to TDIU. The decision additionally denied an increased disability rating for PTSD. In October 2017, the Veteran submitted a claim of entitlement to TDIU. He again indicated that December 31, 2010 was his last day of full-time employment. In May 2019, the Court vacated the Board’s March 2017 decision to the extent it denied an increased rating for PTSD and remanded the claim back to the Board. In March 2020, the Board remanded claims for an increased rating for PTSD and TDIU, noting that the RO had not yet considered the Veteran’s TDIU claim in the first instance. In a November 2020 rating decision, the RO granted entitlement to TDIU effective January 1, 2011, the day following the Veteran’s last day of full-time employment as indicated on his application for TDIU. The RO noted that the decision represented a partial grant of the benefits sought and continued the appeal. (Continued on the next page)   The Board acknowledges the ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009), in which the Court held that a claim for TDIU is part of an increased rating claim when such claim is raised by the record, and the unemployability is at least in part due to the disability for which the increased rating is being sought. However, the circumstances of the present case are distinguishable from those in Rice, in that the Veteran explicitly withdrew his claim for TDIU in December 2015, essentially bifurcating it from the increased rating claim. The Board honored the Veteran’s request and dismissed the TDIU claim in June 2016. For this reason, the Board finds that the RO incorrectly determined that its November 2020 decision was only a partial grant of the benefit sought. As the Veteran refiled a claim of entitlement to TDIU in October 2017, the grant of TDIU effective January 1, 2011 represents a full grant. As such, there is no justiciable case or controversy before the Board at this time with respect to this claim and the issue is dismissed. 38 U.S.C. § 7105(d)(5). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.