Citation Nr: 21021058 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 19-10 593 DATE: April 9, 2021 ORDER Entitlement to a disability rating of greater than 50 percent for post-traumatic stress disorder (PTSD) prior to February 1, 2019 is denied. Entitlement to a disability rating greater than 70 percent for PTSD from February 1, 2019 is denied. REMANDED Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to February 1, 2019 the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximated occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas is not shown during this period. 2. After February 1, 2019 onward, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximated occupational and social impairment with deficiencies in most areas but did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD, prior to February 1, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a disability rating in excess of 70 percent, for PTSD beginning February 1, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from December 1965 to December 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019 the Veteran filed a timely appeal and he did not elect an optional hearing before the Board. The Board acknowledges that while the Veteran has not raised the issue of entitlement to a TDIU, the claim is part and parcel of the present claim for higher disability rating for PTSD inasmuch as it is reasonably raised by the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record during the appeal period pertaining to the increased rating claim. As such, the issue of entitlement to a TDIU is therefore properly before the Board. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher prior to February 1, 2019 and in excess of 70 percent for the period beginning February 1, 2019 and thereafter. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2 ; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 1.Entitlement to a disability rating of 50 percent for PTSD prior to February 1, 2019. The Veteran contends that his service-connected PTSD is worse than currently rated. The Veteran is currently in receipt of a staged rating for his service connected PTSD, 50 percent disabling for the initial period to February 1, 2019, and 70 percent thereafter. The Board concludes that the Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating prior to February 1, 2019. March 2014 VA outpatient progress notes indicate that the Veteran avoided talking about Vietnam, suffered from recurrent dreams and nightmares, did not like to be around people, was argumentative and hypervigilant, was easily startled by sounds, did not experience any flashbacks when awake, and experienced poor sleep. The Veteran did not exhibit obsessions or panic attacks. The Veteran’s thought content and perception was normal. He denied suicidal ideations, auditory visual hallucinations and perceptual disturbances. July 2014 VA outpatient progress notes indicate that the Veteran reported feeling calmer and sleeping better. He continued to experience disturbing dreams three to four times a week. The Veteran denied suicidal ideations or attempts and there were no prior admissions for psychiatric treatment. The Veteran was calm, cooperative and pleasant. His judgment and insight were good. In August 2014, the Veteran associated a letter with the claims file from AK, a licensed clinical social worker. The letter was dated May 22, 2014. She reported that the Veteran first started visiting the Orland Park Veterans Center in February 2013. She observed that the Veteran reported symptoms such as trust issues, anger, isolation, feelings of depression, and intrusive thoughts of Vietnam. He also reported troubling dreams, interrupted sleep, low mood and depressed feelings. December 2014 VA outpatient progress notes indicated that the Veteran reported calmer moods and his wife confirmed that his mood seemed improved. The Veteran’s ability to sleep was increased and disturbing dreams were not as frequent. The Veteran reported mild hypervigilance and easy startling and denied paranoia. Anger and irritability were less. The Veteran denied suicidal ideation, denied previous admissions or prior psychiatric treatment. The Veteran was calm, cooperative, and pleasant. His judgment and insight were good. The practitioner observed that the Veteran had a very good support system and reported improvement with current treatment. The examiner opined that the Veteran was at low imminent risk and remained resilient and future oriented, and his family was strongly protective. The examiner opined that the Veteran did not meet criteria for any acute inpatient psychiatric hospitalization but would benefit from continued psychiatric services provided on an outpatient basis. In January 2015 the Veteran was afforded a PTSD examination with a VA psychiatrist who reported that the Veteran suffered from a then-current diagnosis of PTSD based upon DSM 5 criteria. The VA examiner reported that the Veteran was assessed a PCL-5 score of 48/80. With regard to the PCL-5, this is a 20-item self-report measure that assesses the 20 DSM-5 symptoms of PTSD. (US Department of Veteran Affairs, PTSD: National Center for PTSD website). The Veteran denied any current or past suicide ideation and panic attacks were infrequent. The Veteran’s thought processes were logical and sequential. The Veteran’s level of functioning with regard to his mental diagnosis was best summarized as occupational and social impairment with reduced reliability and productivity. The Veteran reported that he was sleeping a little better but did not feel rested upon waking if he experienced flashbacks and nightmares. He reported his mood as improved and less argumentative. The Veteran reported occasionally feeling anxious or being upset easily. April 2015 and July 2015 VA outpatient progress notes specifically identified that the Veteran denied experiencing any panic attacks on both of those dates. The notes indicated that the Veteran was anxious mostly about his daughter, and also experienced occasional nightmares. The Veteran denied any current or past suicide ideation. August 2016 Hines VAMC treatment notes indicated the Veteran reported he was generally doing well. His spouse said he gets irritated easily but otherwise his mood was stable. The Veteran reported that he slept fairly well and experienced nightmares but not frequently, and that hypervigilance persisted. The provider reported that the Veteran’s thought processes were linear and coherent, his judgment and insight were good, and there was no history of suicidal ideation or attempts. The Veteran reported fair improvement with then-current treatment. January 2017 treatment notes from the Hines VAMC reflect no suicidal or homicidal ideations or attempts. The Veteran’s predominant symptom was irritability. The Veteran reported that he remained hypervigilant and attended therapy at a Veteran’s Center. His speech was normal rate and volume, his thought process was linear and coherent, and he displayed good judgment and insight. The practitioner opined that the Veteran’s risk assessment was low as he remained resilient, future oriented, and his family was strongly protective. August 2018 mental health provider from the Hines VAMC noted that the Veteran denied thoughts of suicide. His behavior was pleasant and cooperative, speech was regular, and thought process was logical and linear. The Veteran denied any current problems with irritability and anger. He experienced some problems with driving and getting angry occasionally and was triggered by loud noises and helicopters. The Veteran denied suffering any panic attacks. Prior to February 1, 2019, VA treatment records, VA examination, and the Veteran’s lay statements show that the Veteran’s PTSD disorder was manifested by symptoms associated with a 50 percent rating (e.g., disturbances in motivation and mood). The Veteran’s PTSD disorder was also manifested by symptoms associated with a 70 percent rating (e.g., explosive anger). He had symptoms that are not listed with a specific rating, such as intrusive thoughts and hypervigilance. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. Further, intrusive thoughts and hypervigilance tendencies are similar to disturbances in mood and motivation and impaired abstract thinking, which are contemplated by the assigned 50 percent rating. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. Taking into account the totality of the Veteran’s symptoms, the Veteran, prior to February 1, 2019, experienced occupational and social impairment with reduced reliability and productivity. While the Veteran had nightmares and flashbacks, he did not exhibit obsessions or panic attacks. His thought content and perception were normal throughout this period. Various health care provider described him as calm cooperative and pleasant. His judgment and insight were good. In January 2017, the Veteran was described as resilient, future oriented with a strongly protective family. While the Veteran did experience symptoms contemplated by a 70 percent rating (such as explosive anger), 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. The preponderance of the evidence indicates that the Veteran’s PTSD warrants a 50 percent disability rating and no higher, prior to February 1, 2019. 2.Entitlement to a rating greater than 70 percent for PTSD beginning February 1, 2019. The Veteran underwent a VA PTSD examination in February 2019. The examiner reported that the Veteran had a then-current diagnosis of PTSD based upon DSM 5 criteria. In February 2019, the examiner noted that the Veteran’s PCL-5 score was 67 out of a maximum score of 80. The PCL-5 measures a Veteran’s subjective distress caused by PTSD symptoms. Scores over 50 are considered to be consistent with PTSD in the military population, and the higher the score, the more distressing the symptoms are to the individual. (US Department of Veteran Affairs website: PTSD National Center for PTSD , assessment). The February 2019 examiner opined that the increase in the Veterans PCL-5 score from 48 to 67 suggested that the PTSD symptoms are more severe than at the last examination. The examiner summarized that the Veteran suffered from occupational and social impairment deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. The Veteran consulted with his psychiatrist at the Oakland Veteran Center twice a year and his medication dose was increased. The Veteran reported that he was more irritable recently and experienced a bad temper, including road rage. He also reported that he continued to have nightmares and daytime flashbacks of Vietnam. The Veteran has never been psychiatrically hospitalized and has not had any suicide attempts. The February 2019 VA examinations and the Veteran’s lay statements show that the Veteran’s PTSD disorder was manifested by symptoms associated with a 70 percent rating from the period beginning February 1, 2019. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 70 percent rating but are less severe than those contemplated by a 100 percent rating. The Veteran did not report any symptoms that were contemplated by a 100 percent rating. Further, symptoms such as irritability, disturbing dreams, daytime flashbacks and difficulty establishing and maintaining effective relationships, are contemplated by the assigned 70 percent rating. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. The VA examiner stated that the Veteran experienced occupational and social impairment deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. The examiner noted an increase in symptoms and severity in February 2019, as documented in the Veteran’s VA examinations over time. As noted above, the Veteran did not indicate that he experienced symptoms contemplated by a 100 percent rating and the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. With respect to social impairment, total social impairment is not show. While his marriage had some “ups and downs” with more “downs” over the past 2 years, the Veteran remained married to his wife of 47 years. Despite arguing, he described his marriage as “good.” He was very close with his 2 children and 9 year old granddaughter. While he did not have many friends, he did have a close friend on his block and got along with most of his neighbors. He also talked to his sister daily. He was also close to his brother in law who was also a veteran. The Veteran’s ability to maintain good relationships with his family and neighbors shows that the Veteran’s PTSD was not manifested by total social impairment as contemplated by a higher rating for PTSD. With respect to occupational impairment, the Veteran retired in 2009 after 45 years at a power factory making high fructose corn syrup. While he reported increased irritability and continued to have nightmares, he had never been psychiatrically hospitalized and had no suicide attempts. While the examiner noted that the Veteran was likely to have difficulty getting along with coworkers, concentrating on and remember tasks, ad daytime fatigue due to sleep deprivation, the examiner did not opine that the severity of the Veteran’s PTSD resulted in total occupational impairment as contemplated by a higher rating. In short, the preponderance of the evidence indicates that the Veteran’s PTSD warrants a 70 percent disability rating from February 1, 2019. The preponderance of evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met.   REASONS FOR REMAND Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. A TDIU may be assigned 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. 38 C.F.R. § 4.16 (a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Entitlement to a total rating must be based solely on the impact of the Veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. 57 Fed. Reg. 2317 (1992). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran meets the minimum rating requirements of 38 C.F.R. § 4.16 (a) for a TDIU rating. The Veteran’s combined evaluation for compensation purposes was 70 percent from February 1, 2019. The February 2019 VA examiner noted that the Veteran has not worked since he retired in 2009 after 45 years at a factory. As eligibility for a TDIU rating is contingent on the Veteran’s ability to obtain and maintain substantially gainful employment, clarification of his employment history is required. On remand, the Veteran should be asked to submit an updated TDIU Application. The matters are REMANDED for the following action: 1. If there are updated treatment records they should be obtained and added to the claims folder. 2. Provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for him to complete and return to the RO. He should be instructed to report the specific start and end dates for each employer, the address of the employer, and his income. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.M. Schneider 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.