Citation Nr: 21023164 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-24 722A DATE: April 20, 2021 ORDER Entitlement to an initial disability rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a skin disability, to include as due to herbicide exposure, is remanded. FINDING OF FACT During the entire appeal period, the Veteran’s PTSD symptoms manifested in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial disability rating of 50 percent for PTSD, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to April 1971. He died in March 2020. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2014, the Veteran submitted a VA Form 21-8960, a claim for a TDIU. A claim for a TDIU is part and parcel of an increased rating claim when a TDIU is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in April 2014 the Veteran submitted a statement that he was withdrawing his TDIU claim. In August 2017, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In March 2018, the Board, in pertinent part, remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. In May 2020, the appellant was substituted as the claimant. 38 U.S.C. § 5121A. Increased Rating VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id.; see 38 C.F.R. § 4.14. In disability rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s service-connected PTSD was evaluated as 30 percent disabling during his lifetime under 38 C.F.R. § 4.130, Diagnostic Code 9411. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under the General Rating Formula, as pertinent to the present appeal, a 30 percent rating is warranted where there is 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 behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted where the disorder is manifested by 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating requires 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. Id. The maximum 100 percent rating requires 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. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. VA must consider all symptoms of a claimant’s condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-V). 38 C.F.R. §§ 4.125, 4.126. The Federal Circuit clarified that the General Rating Formula for Mental Disorders requires (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency or duration; and (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio, 713 F.3d at 117 (noting that the “frequency, severity, and duration” of a veteran’s symptoms “play an important role” in determining the disability level). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. VA treatment records from the appeal period reflect the Veteran reported pervasive sadness with feelings of shame, worthlessness, and anger; anxiety; night sweats; decreased energy and nightmares. He consistently denied any suicidal ideation, intent, or plan. The Veteran also reported intrusive thoughts, flashbacks, hypervigilance, and isolating from others. See, e.g., Mental Health Notes dated November 2010; November 2011 ; October 2012; August 2013; September 2014 ; October 2015; October 2016; September 2017; September 2018; October 2019; January 2020. At a January 2011 VA examination, the Veteran reported depressed mood and anxiety, sleep impairment, sporadic visual hallucinations, and irritability. He denied any inappropriate behavior and panic attacks. The examiner noted good impulse control with no episodes of violence. The Veteran had good relationships with his wife, siblings, and parents. See January 2011 PTSD Examination Report. In a March 2011 statement, the Veteran’s VA psychologist stated that he was not able to return to work. She noted that flare-ups should be at a minimum, but he needs to not be involved in work as his flare-ups are very intense and that on these occasions he must come to the clinic for evaluation and treatment. She stated that Veteran’s prognosis was guarded, that is, that the intensity of his flareups could be expected to be reduced, but resolution of major conflicts was projected to be minimal. The Veteran submitted a statement in support of his claim in which he described a history of outbursts of anger at his workplace, including throwing a knives and tools at coworkers and placing another coworker in a chokehold. See February 2014 Correspondence. The Veteran’s history of workplace anger outbursts were corroborated by his former coworker. See February 2014 S.M.F. Statement. She noted that he once threw a tape measure and a wrench, but did not throw them at anyone and no one was injured. She stated that his outbursts normally did not last long and usually resulted in him getting in his truck and going home. A May 2014 VA examination report reflected the Veteran’s symptoms consisted of depressed mood, anxiety, chronic sleep impairment, and mild memory loss. The Veteran’s wife stated that he was prone to outbursts of anger without violence. He reported intermittent thoughts of suicidal and homicidal ideation and being easily angered but walking away from potential conflicts. See May 2014 PTSD Disability Benefits Questionnaire (DBQ). At the August 2017 Board hearing, the Veteran testified that he had difficulty in crowds and was always looking for an exit in case something happened. He further testified to his anger issues and experiencing road rage. Regarding his relationships, the Veteran stated that he avoids certain family members out of fear that he might hurt them over a disagreement. See August 2017 Hearing Transcript. At an October 2019 examination, the examiner recorded the Veteran’s PTSD symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. The Veteran reported a few incidents of road rage since 2014, but no acting out. The examiner noted the Veteran was appropriately dressed and groomed, oriented, with normal speech. See October 2019 PTSD DBQ. The Board finds that a higher, 50 percent, initial rating is warranted. In this regard, the evidence of record more nearly approximates occupational and social impairment with reduced reliability and productivity due to depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired judgment, and difficulty establishing and maintaining effective work and social relationships. Specifically, the Veteran’s treatment records indicate, in particular, irritability, anger, anxiety, and isolating behaviors. Furthermore, the Veteran’s statements and testimony detailed his being easily angered, overreacting, and difficulty with some family and coworkers. The Board notes that the Veteran is competent to report on factual matters of which he has firsthand knowledge, e.g., observing psychiatric symptomatology such as anger and stress, see Washington v. Nicholson, 19 Vet. App. 362, 368 (2005), and the Board finds his statements to be credible, as they are essentially consistent with the medical evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see, too, Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). The Board notes that at no time during the appellate period have the criteria for a 70 percent rating been satisfied. See 38 C.F.R. § 4.130, DC 9411. As the Federal Circuit held in Vazquez-Claudio, a claimant may only qualify for a given disability rating under the General Rating Formula by demonstrating the particular symptoms corresponding to that rating, or others of similar severity, frequency, and duration. 713 F.3d at 117. The Federal Circuit made clear in this regard that in order to show that a symptom is equivalent in severity, frequency, and duration to a symptom listed in the General Rating Formula for a given rating, it is not sufficient that the symptom produce the level of occupational and social impairment associated with that rating. See id. at 116-17. Otherwise, a claimant “whose symptoms correspond[ed] exactly to a 30 percent rating” could be granted a 70-percent rating if it were shown that they affected most areas. Id. The Federal Circuit rejected this interpretation, holding that there must be an initial finding that the Veteran has one or more symptoms of similar severity, frequency, and duration to the symptoms specifically listed in the General Rating Formula for a given rating, and then, if that is established, an assessment of whether one or more of such symptoms produces the level of occupational and social impairment contemplated by that rating. See id. at 117-118. Here, the Veteran’s psychiatric symptoms did not manifest with such severity, frequency, and duration so as to cause occupational and social impairment, with deficiencies in most areas. See C.F.R. § 4.130, DC 9411. As noted above, a 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran was unemployed throughout the appellate period and he reported being depressed. However, there was no impairment in his judgment or thinking. His judgment was described as average and his thought process and thought content as unremarkable. Further, concerning family relationships, he had good relationships with his wife, siblings, and parents. See VA examination reports dated January 6, 2011, May 13, 2014, and October 2019. The Board acknowledges that the Veteran endorsed intermittent thoughts of suicidal ideation in May 2014. However, aside from this notation, he consistently denied suicidal ideation, intent, or plan. The facts of this case are distinguishable from Bankhead v. Shulkin, 29 Vet. App. 10 (2017) wherein the Court held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Bankhead, 29 Vet. App. at 19-23. Here, apart from the above-cited reference, the Board notes that the Veteran’s treatment records overwhelmingly reflected that he denied suicidal ideation. See VA examination reports dated January 6, 2011, and October 2019; and VA treatment records. This case is distinguishable from Bankhead because, unlike in Bankhead, the single notation of intermittent thoughts of suicidal ideation in May 2014 does not by itself or when considered with other symptoms, cause the level of occupational and social impairment associated with a 70 percent disability rating. In contrast to Bankhead, in many other instances during the relevant period, the Veteran reported not having such ideation or thoughts. On this basis, the Board finds that the preponderance of the evidence weighs against a finding that suicidal ideation represents the level of disability manifested during this period. Further, the clinical findings consistently show that the Veteran’s mood as relatively high, and he was not found to have obsessional rituals; speech that was intermittently illogical, obscure, or irrelevant; near-continuous panic or depression that affected the ability to function independently, appropriately and effectively; spatial disorientation; or neglect of personal appearance and hygiene, or symptoms of similar severity, frequency, and duration. Rather, the Veteran’s speech, judgment and insight were generally logical and coherent and he could follow a train of thought. The Board notes that the Veteran has exhibited symptoms of impaired impulse control, including unprovoked irritability. Specifically, the Veteran has reported experiencing anger, irritability, and aggressiveness especially when driving. He further reported having his brother take possession of his firearms. See January 2011 PTSD Examination Report. However, the Board finds these symptoms are not of such severity, frequency, and duration as to cause occupational and social impairment, with deficiencies in most areas, as contemplated by the higher, 70 percent, rating. 38 C.F.R. § 4.130, DC 9411. The Veteran denied any physical altercations or episodes of violence. See VA examination report dated January 6, 2011. With respect to social impairment, the Veteran maintained relationships with his wife and some family members. He was also friendly with one neighbor. See VA examination report, dated in May 2019. Concerning occupational impairment, he last worked in August 2010. He was awarded Social Security disability benefits with a primary diagnosis of gout and a secondary diagnosis of “anxiety-related disorders.” SSA records described functional limitations due to the Veteran’s PTSD and mild and moderate. The Veteran reported that he retired due to his gout, although he was hot-headed and easily irritated on the job. Of note, on VA examination in May 2014, he stated that he was an overall good worker and did not receive any reprimands. See VA examination report, dated May 12, 2014. While the Veteran’s VA psychologist stated in March 2011 that he was not able to return to work due to intense flare-ups of PTSD, she also stated that his flare-ups should be at a minimum and that the intensity of his flareups could be expected to be reduced. Thus, this opinion lacks probative value as it is inconsistent with the provided rationale. The January 2011 VA examiner noted that the Veteran’s PTSD symptoms were chronic, moderate and ongoing and the May 2014 VA examiner noted that his PTSD symptoms were mild/moderate and ongoing. The June 2011, May 2014, and October 2019 VA examiner all concluded that the Veteran’s PTSD symptoms caused only occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In view of the foregoing, the Board finds that the Veteran’s PTSD was not manifested by symptoms of such severity, frequency or duration so as to cause occupational and social impairment with deficiencies in most areas. Thus, the criteria for a 70 percent rating are not met or more nearly approximated. See 38 C.F.R. § 4.7. In sum, the Board finds that the probative medical and lay evidence establishes that the Veteran’s psychiatric disorder has been productive of symptoms including anxiety, depression, irritability, anger, and sleep impairment, which result in difficulty establishing and maintaining effective relationships. These symptoms result in occupational and social impairment with reduced reliability and productivity. See 38 C.F.R. §§ 4.7, 4.130, DC 9411; see also Mauerhan, 16 Vet. App. 436 (holding that, for the Board to assign a specific rating, it need not find all or even some of the symptoms present; rather, it only need find that the functional effect of the symptomatology justifies a particular rating). Accordingly, the probative evidence shows the Veteran’s disability at least as likely as not meets the criteria for an initial 50 percent rating, but no higher, for an acquired psychiatric disorder. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Entitlement to service connection for a skin disability Another remand is required as there has not been substantial compliance with the directives of the March 2018 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance, rather than absolute compliance, with remand orders). In this regard, the March 2018 Board remand directed the RO to obtain a VA medical opinion which addressed whether the Veteran’s skin disorder was related to his active service, to include his herbicide and chemical exposure. A September 2019 VA opinion provided a negative nexus, rationalizing, in pertinent part, that the Veteran’s separation examination was silent for any skin disorders and the Veteran’s diagnosed skin disorders were not presumptive conditions related to herbicide exposure. The examiner found the Veteran’s skin disorder was related to his post-service chemical exposures working in a paper mill. Upon review, the September 2019 VA opinion is inadequate, as the examiner did not address the Veteran’s asserted in-service chemical exposures to cleaning solvents, diesel fuel, or kerosene. Additionally, under Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994), service connection for the Veteran’s skin disorder may still be granted with proof of direct causation due to herbicides. The September 2019 opinion was based solely on the Veteran not being diagnosed with a presumptive skin disorder. Accordingly, a supplemental opinion is required, as set forth below. The matters are REMANDED for the following action: 1. Refer the case to a VA clinician for a supplemental medical opinion. The entire claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken, The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s skin disorder(s) had its clinical onset during active service or is related to any incident of service, to include herbicide and/or chemical exposure. In reaching this opinion, the examiner should consider and address the following: * The Veteran’s statements that he was exposed to banned toxins, cleaning solvents, diesel fuel, kerosene, and herbicide agents and noticed a skin rash within six months of returning from Vietnam. * VA treatment records which reflect that the Veteran gave a history of a chronic, intermittent, pruritic rash since 1972. * The statement made by the Veteran’s father which provided that he had a rash on his back, stomach, arms, and legs since returning from Vietnam. The clinician is advised that the sole basis of a negative opinion cannot be that specific skin disorder is not on the list of diseases subject to presumptive service connection based on exposure to herbicide agents. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.