Citation Nr: 21022914 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-03 986 DATE: April 19, 2021 ORDER 1. Entitlement to a 100 percent schedular rating for posttraumatic stress disorder (PTSD) prior to July 1, 2015 is denied. REMANDED 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to July 1, 2015 is remanded. FINDING OF FACT Prior to July 1, 2015, the Veteran’s PTSD was not shown to have been manifested by symptoms productive of total occupational and social impairment. CONCLUSION OF LAW A 100 percent schedular rating for PTSD was not warranted prior to July 1, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1983 to June 1984 and from May 1985 to September 1986. These matters are before the Board on appeal from an August 2012 Department of Veterans Affairs (VA) rating decision. In September 2018 and November 2019, the Board remanded the matters for additional development. Entitlement to a 100 percent schedular rating for PTSD prior to July 1, 2015 is denied. On October 2008 Vet Center intake, the Veteran presented as affable and motivated for treatment. He denied past or present delusions or hallucinations. He denied current suicidal or homicidal ideation. He was in early remission from long-term polysubstance abuse (mostly heroin). He reported symptoms including depression, agitation, irritability, anger management problems, intrusive thoughts, and flashbacks. On October 2009 VA examination, the Veteran reported a continuous drug problem; that he was arrested for burglary and imprisoned twice, each time for 8 years, and used drugs throughout the time in prison; and that he was released in 2008 and he continued to use drugs, as recently as 3 weeks earlier. He reported that he recently married a woman he had known for 15 years, and that he had little contact with an adult son who was in prison. He reported attending church, and that he enjoyed reading and being on the internet. He denied any history of suicide attempts. He reported that he was easily angered and had been mentally abusive with a woman in a previous relationship. He reported having some family support and a few social relationships. On mental status examination, the Veteran was described as clean, neatly groomed, and casually and appropriately dressed. His psychomotor activity and speech were unremarkable, and his attitude toward the examiner was cooperative. His affect was normal, and mood was good. His attention was intact, and he was fully oriented. His thought process and thought content were unremarkable. His memory was normal. He had no delusions or hallucinations, and his judgment and insight were intact. He reported sleep impairment; he slept about 5 to 6 hours per night. He did not have inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or homicidal or suicidal thoughts. His impulse control was fair. He was able to maintain minimum personal hygiene and had no problem with activities of daily living. He quit his job less than 1 year earlier and had not found new employment; he did not indicate that his unemployment was due to his mental disorder. The examiner opined that there was reduced reliability and productivity due to mental disorder symptoms. On January 2010 VA treatment, the Veteran was noted to be in a domicile-based treatment for military sexual trauma. He reported that he had been sober since December 2009 and wanted to stay clean. He reported getting support from his wife, but did not see hope and thought he would go back to using and become homeless again. He reported fear that he would lose his wife, thinking she would give up on him. He reported having a depressed mood of feeling hopeless and finding no reason to get out of bed. He denied suicidal thoughts or wishes of death. He reported a history of feeling overconfident and starting to make complex plans. He denied being usually energetic but admitted to being motivated, waking up early and going to sleep late and accomplishing a lot; this did not last for more than a week, and he would return to staying in bed and using drugs. He reported being vigilant and staying on guard when he has to be around men, and isolating himself from other men. He reported difficulty trusting female friends or his wife due to what happened with his first wife. He reported having a limited relationship with his adult son, who was in prison. On mental status examination, the Veteran was described as well-groomed but avoided eye contact and had limited hand gestures. He was not muddled in thinking or responding to internal stimuli. No abnormal motor activities were noted, and he was not restless or agitated. His mood was depressed, and his affect was guarded and constricted. His speech was normal to rate, rhythm, and volume. His thought process was logical, linear, and goal-oriented. There was no evidence of suicidal or homicidal ideation, delusions, or audiovisual hallucinations. He was alert and fully oriented, and his memory was intact. His judgment and insight were fair. The diagnosis was chronic PTSD, rule-out mood disorder from long history of substance abuse, substance abuse dependence in early remission, rule-out borderline personality disorder, and rule-out antisocial personality disorder. On August 2011 VA treatment, the Veteran reported that his anxiety was getting worse and he was depressed nearly all the time; he had been out of medication since June. He reported psychomotor retardation, excessive guilt, and some difficulty with concentration and motivation, and continued to experience discomfort in crowds, particularly in the company of males. He reported continued chronic sleep disturbances. He denied suicidal or homicidal thoughts, changes in appetite, persistent hopelessness, or perceptual disturbances. He expressed concerns about being a burden to his wife. He denied recent use of alcohol or illicit substances. On mental status examination, the Veteran was neatly dressed and groomed, and cooperative with fair eye contact. His psychomotor movement and speech were normal. His mood was depressed, and affect was congruent and blunted. His thought process was logical and goal-directed, and there was no evidence of delusions or hallucinations. His insight and judgment were fair. On July 2012 VA examination, the Veteran reported that he had been unable to maintain employment since the military; his longest job held was at a McDonald’s. His reported symptoms included depression, agitation, irritability, anger outbursts, intrusive thoughts, and flashbacks. He reported that he was hospitalized in 2010 for 6 months at a military sexual abuse trauma center. He reported that he had not used crack cocaine in a year and a half, though he was currently abusing alcohol. His symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work-like setting, and impaired impulse control such as unprovoked irritability with periods of violence. The diagnoses were PTSD and polysubstance dependence, in partial remission. The examiner opined that clinically significant impairment due to dependence on heroin, cocaine, and alcohol were due to polysubstance abuse, and irritability, anger outbursts, insomnia, and depression were due to PTSD. The examiner opined that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. The examiner opined that the Veteran required outpatient mental health services but did not appear to pose threat of danger or injury to himself or others. Based on this evidence, the August 2012 rating decision on appeal granted the Veteran service connection for PTSD, rated 70 percent, effective January 27, 2009. A January 2013 discharge summary notes a psychiatric hospitalization of the Veteran in December 2012 for depression from crack withdrawal and a fear or committing crimes, and maybe hurting somebody in the process. He denied having thoughts of self-harm and suicide during the hospitalization. He reported a long-term history of cocaine use in addition to alcohol and cannabis abuse, having last used in December 2012. He had separated from his wife of 4 years in October 2012. He reported depression with depressed mood, hopelessness, and helplessness, and related that these symptoms were related to his life situation. He reported that his PTSD symptoms of distrust and paranoia of people were still present, but denied having flashbacks or nightmares. A May 2013 discharge summary notes that in January 2013, the Veteran was admitted to a domiciliary for substance use recovery, and participated in the center’s intensive outpatient program until his discharge in May 2013 when he moved into his own apartment. He was under psychiatric care and planned to resume therapy at a Vet Center. He reported completing a G.E.D. and some college credit. He served in communication working with power generators during service, and civilian employment included management, warehouse laborer, handyman, facilities management, and housekeeping. He was currently unemployed, last worked in 2012, and hoped to return to work at some point. On July 2014 VA treatment, the Veteran wished to establish mental health services, after relocating in April 2014 to live with a friend. He reported self-discontinuing a medication 2 weeks earlier due to some hand tremors but continued to take sertraline, which he reported helped him function on a day to day basis. He reported intrusive military thoughts, moving a lot in his sleep but no dreams, crowd avoidance, and sensitivity to loud noises. He reported that he was currently unemployed but was working with Voc Rehab to assist him in filling out an application to return to college, seeking a dual degree in law and library science. He requested to continue sertraline for mood and to begin a medication that would motivate him to focus in school. He denied hopelessness and was motivated for ongoing mental health treatment. On mental status examination, the Veteran was casually and appropriately dressed, alert, and fully oriented. His speech was regular and spontaneous, and he maintained adequate eye contact. His mood was euthymic, and affect was mood congruent with appropriate range of expression. He denied having suicidal or homicidal ideation, intent or plan. His thought process was organized without evidence of thought disorder or delusional thinking. He denied having hallucinations or paranoia. His insight and judgment were intact. On March 2015 VA treatment, the Veteran reported difficulty focusing and that he had a lot going on; he was working with Voc Rehab on getting back into college, hoping to complete an associates’ degree in general studies. He reported some low-grade depressed mood as his brother had passed away unexpectedly, and he reported relationship issues with his girlfriend and financial concerns. He denied suicidal or homicidal intent or plan but reported anergia, difficulty with concentration and focus, and intrusive military related thoughts. He cited his girlfriend as his support system and indicted that he enjoyed fishing for leisure. On mental status examination, the Veteran was described as casually and appropriately dressed, alert, and fully oriented. His speech was spontaneous and soft in tone. His mood was mildly dysthymic with congruent affect. His thought process was organized without evidence of a thought disorder or delusional thinking. His insight and judgment were intact. On July 1, 2015 VA examination, PTSD was diagnosed; the examiner opined that alcohol abuse appeared to be a coping mechanism used to deal with situational stressors and PTSD. The examiner opined that the Veteran’s psychiatric diagnoses resulted in occupational and social impairment with deficiencies in most areas. The Veteran was in an acute state of PTSD. He was enrolled in school and a student in the classroom reminded him of his former perpetrator. Since school began, his alcohol use increased, and he was engaging in self-inflicted burns on his arms. He reported he had stayed in his car for the past four days, and planned to stay at his father’s house. He reported he had not worked since 2011. He reported that he beagn school and completed summer classes with passing grades, though he did not attend school for the past seven days because he was overwhelmed with seeing a classmate who reminded him of his perpetrator. He reported that he had been married for three years, but left the relationship this week due to flashbacks from his military sexual trauma. He reported daily alcohol use in the past week, but only once or twice a week earlier. He reported symptoms including depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; impairment of short and long-term memory; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or a work like setting; inability to establish and maintain effective relationships; and persistent danger of hurting self or others. On mental status examination, the Veteran was described as appropriately dressed. He presented with a depressed and flat affect. He was tearful at points. He was oriented in all spheres, and his thought process was goal directed. His eye contact was indirect as he often looked down at the floor. He denied having hallucinations or delusions or any current intent to harm himself or others. The examiner opined that the Veteran’s symptoms were currently acute, as he recently left a relationship due to flashbacks, and experienced derealization symptoms as a fellow classmate reminded him of a perpetrator from a military sexual trauma incident; he responded to these experiences by engaging in self-harm behaviors and increasing alcohol consumption. The Veteran has also submitted lay statements describing his difficulties due to his psychiatric disability. Based on this evidence, a July 2020 rating decision granted the Veteran a 100 percent schedular rating for PTSD effective July 1, 2015, the date of the VA examination showing increased symptomatology. What remains before the Board is whether a rating in excess of 70 percent is warranted prior to July 1, 2015. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. PTSD is rated under the General Rating Formula for Mental Disorders. A 70 percent rating is warranted when there is 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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 own name. 38 C.F.R. § 4.130, Code 9411. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because “[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology,” and the plain language of this regulation makes it clear that “the veteran’s impairment must be ‘due to’ those symptoms,” “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). “[I]n the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 117. Although a veteran’s symptoms are the “primary consideration” in assigning a rating under § 4.130, the determination as to whether the veteran is entitled to a 70% disability evaluation “also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The reports of the VA examinations, treatment records, and lay statements, overall, do not show that at any time under consideration the Veteran’s psychiatric disability was productive of both total occupational and total social impairment, so as to warrant a 100 percent schedular rating. There is no evidence (or even allegation) prior to July 1, 2015 of the types of symptoms listed in the rating schedule as reflective of impairment warranting a 100 percent rating, 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, etc. or any other symptoms of similar gravity. The treatment records and reports of examinations during the relevant period consistently show appropriate thought processes and communication. More significantly, he continued to pursue a college education and maintained romantic relationships. There is no indication that he was unable to tend to activities of daily living. While the observations by the VA examiners and treatment providers suggest that he had increasingly limited social relationships and increased withdrawal, such impairment is encompassed by the criteria for the 70 percent rating (which contemplate deficiencies in most areas). The disability picture presented simply does not reflect impairment consistent with the criteria for a 100 percent schedular rating during the relevant period, and such rating is not warranted. The Board notes the lay statements submitted by the Veteran in support of this claim. They describe the types of problems that result from his psychiatric symptoms. The level of functioning impairment he describes is encompassed by the criteria for the 70 percent rating assigned; thus, even his own lay statements do not support that an increased rating is warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in the matter must be denied. REASONS FOR REMAND Entitlement to a TDIU rating prior to July 1, 2015 is remanded. The schedular requirements for a TDIU rating were met prior to July 1, 2015. However, the Board finds that additional development is necessary to determine whether the Veteran’s service-connected disabilities precluded substantially gainful employment prior to July 1, 2015. The Board notes that VA Form 21-8940 (TDIU application) is part of the TDIU application process, and the Veteran must be asked to provide a completed VA Form 21-8940 and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) because the form contains information needed to properly adjudicate a TDIU claim . A remand for such development is necessary. The matter is REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the completed form. Also afford the Veteran opportunity to identify or submit any additional pertinent evidence supporting his TDIU claim. 2. Have the Veteran clarify the name/address of each employer, the specific start and end dates for each employment, hours worked, income, and reason for termination (if any) for each position during the appeal period, and to submit an authorization for VA to obtain pertinent records from each employer. Then ask the employers to complete VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. 3. Arrange for any further development suggested by the responses to the development sought above. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.