Citation Nr: 21021012 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 15-08 237 DATE: April 9, 2021 ORDER For the period from October 1, 2010 to February 20, 2018, an increased 30 percent disability rating for post-traumatic stress disorder (PTSD) is granted. For the period since February 20, 2018, a disability rating in excess of 70 percent for PTSD is denied. VETERAN CONTENTIONS The Veteran contends that after service he has experienced increased anger and irritability that negatively impact his personal and work relationships. The Veteran further contends that he has been unable to work for the previous two years due to his PTSD symptoms. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period from October 1, 2010 to February 20, 2018, the Veteran’s PTSD was productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the period since February 20, 2018, the Veteran’s PTSD was productive of no more than occupational and social impairment, with deficiencies in most areas. CONCLUSIONS OF LAW 1. For the period from October 1, 2010 to February 20, 2018, the criteria for an increased disability rating of 30 percent for PTSD were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. For the period since February 20, 2018, a disability rating in excess of 70 percent for PTSD were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps, during the Gulf War Era and Peacetime, from December 1984 to April 1985, June to December 2002, March 2003 to November 2004, May 2008 to June 2009, and August 2009 to September 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). There was a December 2020 Board hearing before the undersigned Veterans Law Judge (VLJ) and the transcript is of record. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.10, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. To warrant a higher disability rating under 38 C.F.R. § 4.130, the evidence must show or most closely approximate: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behaviour, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) (30 percent). 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; difficulty in establishing and maintaining effective work and social relationships (50 percent). Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, 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 worklike setting); inability to establish and maintain effective relationships (70 percent). Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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 (100 percent). The list of symptoms under the rating criteria are examples of symptoms that would warrant the rating, but are not exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). However, that is not the case where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Separate ratings may be assigned for separate periods of time based on the facts found—a practice known as “staged rating”. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the Veteran expressed dissatisfaction with the initial rating for PTSD and continuously pursued the claim. See 38 C.F.R. § 3.160. Therefore, his initial claim has not become final. 1. For the period from October 1, 2010 to February 20, 2018, an increased 30 percent disability rating for post-traumatic stress disorder (PTSD) From the day after discharge from service until February 20, 2018 the Veteran’s PTSD symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but no more. The Veteran’s most pronounced symptoms during this period included depressed mood, anxiety, occasional panic attacks, irritability, chronic sleep impairment, and mild memory loss. Namely, the record reflects that the Veteran had a minor deficit in working memory and woke nightly between the hours of 1 and 2 am. See 4/23/2012 report of VA Examination. Additionally, the Veteran’s increased irritability caused conflict in both his social and occupational interpersonal relationships. See Id.; 6/27/2012 Medical Treatment Record- Government Facility. Based upon the above, the Board finds that the Veteran during this period experienced impairment in the areas of family relations, work, and mood. Because the Veteran’s speech and affect remained appropriate, his thought process remained intact, and because his judgement remained unimpaired during this period, the criteria for an increased 50 percent rating were not met. See 6/27/2012 Medical Treatment Record- Government Facility; 1/8/2021 Medical Treatment Record- Government Facility. 2. For the period since February 20, 2018, a disability rating in excess of 70 percent for PTSD However, during the pendency of the appeal, the RO granted a 70 percent disability rating for the Veteran’s PTSD effective February 20, 2018, the date of the VA Examination evidencing his increased symptomatology. See 2/21/2018 C&P Examination; 3/15/2018 Rating Decision. During that examination it became clear that the Veteran’s PTSD symptoms were productive of occupational and social impairment, with deficiencies in most areas. Specifically, the Veteran’s symptoms during this period reflected labile affect, agitated mood, and occasional homicidal imaginings. See 2/20/2018 C&P Examination. As to the Veteran’s expressed homicidal ideation, this symptom is like persistent danger of harm to others contemplated by the 100 percent criteria. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017).  However, the severity, frequency, and duration of the Veteran’s homicidal ideation during this period did not rise to the level contemplated by a 100 percent disability rating. See 2/21/2018 C& P Examination. According to the Veteran his homicidal ideations are not something he would act on but from time to time he “would like some street justice”. 12/10/2020 Hearing Transcript. Furthermore, the medical evidence or record does not reflect, nor did the Veteran report, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, extreme memory loss, or an intermittent inability to perform activities of daily living. As such, a higher 100 percent rating for the Veteran’s PTSD during this period is not warranted. REASONS FOR REMAND 1. The issue of entitlement to TDIU is remanded. A TDIU claim can be expressly raised or inferred, by the Veteran’s contentions and the evidence of record. Rice v. Shinseki, 22 Vet. App. 447 (2009). If there is evidence of unemployability at the time of an increased rating claim challenging the initial disability rating assigned for the disability upon which the unemployability is based, entitlement to TDIU, including the effective date for that award, is part and parcel of the determination of the initial rating for that disability. Id. at 454-55. A request for TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Id. at 453-54. Once the issue of entitlement to TDIU is raised, it is “part of the claim for benefits for the underlying disability.” Id. The agency of original jurisdiction’s (AOJ) grant of TDIU for only a portion of the period on appeal does not bifurcate the issue of entitlement to TDIU from the underlying claim. Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). Rather, it serves as a partial grant. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16 (a). Here, the Veteran’s combined ratings were sufficient to warrant a schedular evaluation for TDIU during the entirety of the appeal period. He was service connected for sleep apnea at 50 percent, effective October 1, 2010 and, after this decision, the Veteran’s combined ratings were 80 percent from 10/1/2010 and 90 percent from 2/20/2018. During the Veteran’s hearing he indicated that he has been unemployed for two years due to his PTSD symptoms. Therefore, remand is necessary to evaluate the Veteran’s employment history and current employment status. The matter is REMANDED for the following action: Provide the Veteran with VA Form 21-8940. Document all attempts to obtain employment information and associate with the claims file. Following a review of the form and any additional evidence provided, the RO should make an initial determination regarding entitlement to a TDIU. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z, Sloley, 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.