Citation Nr: 21023236 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-29 423 DATE: April 20, 2021 ORDER Entitlement to an initial posttraumatic stress disorder (PTSD) rating of 70 percent from December 19, 2005 to August 17, 2011, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability prior to August 18, 2011, is denied. FINDINGS OF FACT 1. The probative evidence of record shows that the Veteran’s PTSD was manifested by occupational and social impairment, with deficiencies in most areas from December 19, 2005 to August 17, 2011. The evidence fails to show total social and occupational impairment for this period. 2. Due to the Veteran's lack of response, there is insufficient evidence in the record to find that he was unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities prior to August 18, 2011. CONCLUSIONS OF LAW 1. The criteria for an initial PTSD rating of 70 percent, but no higher, from December 19, 2005 to August 17, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a total disability rating based on individual unemployability (TDIU) due to service-connected disability prior to August 18, 2011 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1968. This matter was last before the Board in September 2018, at which time it was remanded for further development. The matter is now returned to the Board for adjudication. 1. Entitlement to an initial posttraumatic stress disorder (PTSD) rating in excess of 50 percent prior to August 18, 2011 The Veteran was initially granted service connection for PTSD, rated as 50 percent disabling, effective December 19, 2005. He was granted an increased 100 percent rating, effective August 18, 2011. The Veteran contends that a rating in excess of 50 percent was warranted prior to August 18, 2011. The Veteran's PTSD is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9400, 9411. Under this criteria, a 50 percent rating is warranted for 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., the retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, thinking or mood, due to symptoms such 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); or an inability to establish and maintain effective relationships. Finally, a maximum of 100 percent rating is warranted for total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly in appropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). When determining the appropriate disability evaluation to assign, the Board must make findings as to how the Veteran's symptoms impact his or her occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). All ratings in the general rating formula are 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. The medical evidence of record for the period on appeal consists of VA examinations conducted in July 2007 and June 2009, as well as VA and private treatment records. The Veteran was afforded a VA examination for PTSD in July 2007. The examiner reviewed the claims file and available VA health records. The Veteran reported no recent hospitalizations for medical or psychiatric reasons. The Veteran reported emotional symptoms of depression, anxiety, occasional anger, and sleep disturbances with occasional nightmares which he attributed to his combat experiences in Vietnam. The Veteran was emotionally labile and reported crying on occasion without clear precipitant. He was in the midst of a divorce, as his wife of 37 years had recently left him. The Veteran reported a history of problems with aggressiveness and anger control. The examiner considered the emotional symptoms of be of moderate severity. The examiner observed the Veteran's thought processes and communication skills were within normal limits. The Veteran did not report any history of obsessive or ritualistic behaviors or any history of anxiety consistent with panic disorder. The Veteran presented a dysphoric mood with congruent, sad effect. He reported periods of depression and anxiety relative to current situational life circumstances, particularly his then pending divorce. The examiner found this to be a moderate impact on social/occupational functioning. While the Veteran did not display any unusual impulse control during the interview, his history of severe alcoholism and recent history of anger in his marital relationship indicated significant problems in both the remote and recent past. At the time of a November 2007 mental health treatment record, the Veteran was noted to have significant sleep problems, nightmares several times a week, and trouble concentrating. He reported having regular contact with his siblings and an excellent relationship with his children. He further reported retiring in 2005 due to anxiety and depression, but that he continued to do consulting work. A May 2008 VA treatment record shows that the Veteran was referred to mental health following his reports of suicidal thoughts during an audiological evaluation. A June 2009 treatment record indicates the Veteran displayed symptoms of insomnia, nightmares, persistent anxiety, unwanted war memories, isolation, depression, irritability, hypervigilance, hyper startle response, and hopelessness. At the time of a June 2009 examination, the Veteran reported symptoms of anxiety, depression, and sleep difficulties. He reported marrying in 1970, divorcing in 2007, and having an excellent relationship with his two children. He denied any history of suicide attempts, but reported a history of angry outbursts. He was noted to be experiencing moderate impairment in his psychosocial functioning status. The Veteran was noted to appear clean, neatly groomed, with appropriate affect. He was noted to be intact with person, time, and place. His insight and judgment appropriate. He reported sleep impairment, but denied any hallucinations, inappropriate behavior, ritualistic/obsessive behavior, or homicidal thoughts. He endorsed a history of panic attacks, suicidal thoughts, and episodes of violence. The Veteran was noted to have slight impairment with some activities of daily living and mild short term-memory difficulties. With regard to occupational functioning, the examiner indicated that it appeared the Veteran would have moderate difficulties in his ability to function in his normal occupational environment, noting the Veteran’s reports of his issues with concentration, his temper, and violent outbursts. The examiner noted that the Veteran’s occupational impairment was likely related to both mental and physical conditions from which the Veteran suffered. Ultimately, the examiner opined that the Veteran was not totally socially nor occupationally impaired. However, the examiner found that the Veteran’s PTSD symptoms led to deficiencies in judgment, thinking, family relations, work, and mood. The remaining VA treatment records indicate that the Veteran sought ongoing mental health treatment during the period on appeal, with symptoms largely mirroring those discussed in detail above. The evidence does not demonstrate total social or occupational impairment. Here, the Board finds that the evidence of record more nearly approximates an initial 70 percent rating for the period from December 19, 2005 to August 17, 2011. Specifically, the medical evidence discussed above notes several of the criteria for a 70 percent rating throughout the period on appeal to include: suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; and impaired impulse control (such as unprovoked irritability with periods of violence). Moreover, the above-cited evidence as it relates to the Veteran’s marriage and work relationships supports a finding that he had difficulty in adapting to stressful circumstances (including work or a work-like setting), or an inability to establish and maintain effective relationships. Finally, the June 2009 examiner explicitly found that the Veteran’s PTSD was manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, thinking or mood; the criteria for a 70 percent rating. The Board finds that although the Veteran's PTSD symptoms are serious, they do not rise to the level of the criteria for a 100 percent rating, as the preponderance of the evidence is against a finding of total social or occupational impairment due to PTSD. The Board finds the VA examiner's opinion regarding the overall level of severity of the Veteran's PTSD to be particularly persuasive. The next higher, 100 percent rating criteria contemplate total social and occupational impairment, which the Board finds is not shown in this case. While the evidence of record indicates severe social and occupational impairment, the medical evidence does not show that the Veteran’s PTSD has been manifested by persistent delusions or hallucinations, grossly inappropriate behavior, or a persistent danger of hurting himself or others. While the evidence of record shows slight impairment with some activities of daily living and mild short term-memory difficulties, there is no evidence of inability to perform activities of daily living, or memory loss for names of close relatives, his own occupation, or his own name. As a result, the Board finds that the Veteran's PTSD symptoms, though serious, demonstrate a level of functionality not contemplated by the criteria for a 100 percent rating. A review of VA or private treatment records over this period does not reveal any evidence which would support a higher rating. Accordingly, a 100 percent rating for PTSD is not warranted. For the reasons stated above, the Board finds that an initial rating of 70 percent, but no higher, is warranted for the Veteran’s PTSD from December 19, 2005 to August 17, 2011. 2. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability prior to August 18, 2011 The Veteran has not provided the information or evidence requested by VA to determine entitlement to TDIU prior to August 18, 2011. In a September 2018 remand, the Board found that it was unclear from the Veteran’s claims file when he stopped working and how much he was working at various points in time. Additionally, the Board noted several varying accounts in the record as to when the Veteran stopped working and how much he earned. In a November 2007 VA treatment record, the Veteran reported that he continued to do some consulting work. In a February 2009 TDIU application, the Veteran reported he became too disabled to work in August 2005, that he last worked full-time June 2006, and that his disability affected full-time employment December 2007. A July 2009 statement from the Veteran’s employer indicates that the Veteran does part-time sales and earned $6,923.16 in the prior 12 months. A January 2010 VA report of general information reflects that the Veteran’s employer relayed that the Veteran is still employed and earns approximately $30,000 per year. Based on this, the Board determined that a remand was necessary to offer the Veteran the opportunity to submit information regarding the nature, hours, and income relating to any employment prior to August 18, 2011. On remand, the Veteran was provided a copy of the VA Form 21-8940 (Application for TDIU) in June 2019. The Veteran did not respond. In October 2019, the RO sent the Veteran another copy of the VA Form 21-8940. The Veteran did not respond. A substantially complete VA Form 21-8940 is required to establish entitlement to TDIU. See Veterans Benefits Administration (BVA) Adjudication Procedure Manual (Manual), IV.ii.2.F.2.b. It provides relevant and indispensable information regarding a claimant's disabilities and employment and educational histories, and concludes with a series of sworn certification statements endorsing the Veteran's employment status and signaling his or her understanding that TDIU benefits are incompatible with substantially gainful work. Id. When a claimant does not cooperate with development of a TDIU claim by not returning a completed VA Form 21-8940 when requested, the VBA Manual instructs that the claim is to be denied. See VBA Manual, IV.ii.2.F.4.k.; 38 C.F.R. § 3.158 (providing that when evidence requested in connection with an original claim is not furnished within one year after the date of request, the claim will be considered abandoned). In this case, after several requests, as the Veteran has not provided the information necessary to determine the whether he was entitled to TDIU prior to August 18, 2011, the claim must be denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, 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.