Citation Nr: 21024051 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-28 780 DATE: April 22, 2021 ORDER Entitlement to a disability rating greater than 50 percent for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI), prior to October 24, 2012, is denied. A 70 percent disability rating, but no higher, for PTSD with TBI is granted from October 24, 2012, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to October 24, 2012, the Veteran’s PTSD with TBI resulted in symptoms that approximated occupational and social impairment with reduced reliability and productivity. 2. Since October 24, 2012, the Veteran’s PTSD with TBI has resulted in symptoms that approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 50 percent for PTSD with TBI, prior to October 24, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code (DC) 8045-9411. 2. The criteria for a 70 percent rating from October 24, 2012, for PTSD with TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, DC 8045- 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 2009 to May 2012, including combat service in Afghanistan, and is also a recipient of the Purple Heart. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Board found that the Veteran’s TDIU claim was raised by the record per Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the Veteran’s claims to the agency of original jurisdiction (AOJ) for additional development. 1. Increased rating for PTSD Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is question as to which of two evaluations shall be applied, the higher rating 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 remission. The rating agency shall assign a rating 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 8045-9411, and is rated under the General Rating Formula for Mental Disorders. The Veteran’s service-connected PTSD with TBI is currently rated 50 percent disabling from May 13, 2012, and 70 percent disabling from February 12, 2020. Under the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted when there is 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. A 70 percent disability 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); and inability to establish and maintain effective relationships. A maximum 100 percent disability 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; and memory loss for names of close relatives, own occupation, or own name. Under the General Rating 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, both listed and unlisted, caused the level of impairment required for a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). When it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant’s favor and the symptoms in question must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). Turning to the relevant evidence of record, in May 2012, the Veteran underwent VA PTSD examination, at which time the examiner rendered a diagnosis of PTSD as well as a TBI diagnosis for injuries sustained in an IED blast in Afghanistan. The examiner also noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner stated that it is not possible to differentiate the portion of his impairment that is caused by his TBI, noting that TBI and PTSD share a number of symptoms in common, including concentration problems, anxiety, anger, depression, and sleep disturbance. The Veteran reported that he returned home from Afghanistan a different person, and that he was having difficulty with former friends and some family members, including his father. He stated that in his free time he enjoyed being with friends and playing sports. He reported that he was working for the City of Manhattan mowing fields and also worked as a bouncer at a bar, but he planned on starting college in the fall. The Veteran also reported struggling with irritation and anger since returning from Afghanistan, noting that he has gotten into verbal altercations with people. Symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood were noted. A June 2012 VA treatment record notes the Veteran reported a history of suicidal ideation, but none at the present. The Veteran further denied ever having any serious plans or any attempts. He endorsed experiencing irritability, and sometimes throwing things when he gets angry. VA treatment records dated October 24, 2012 reflect that the Veteran is a college student, who reported some memory problems from TBI that interfere with his schoolwork. He also reports difficulty in acclimating to civilian life. He stated that he has felt distant and unconnected with his wife and has separated from her. The separation has increased his frustration as he is not able to see or interact with his daughter as much as he would like. The Veteran also explained that he feels “unexplained intense anger,” irritability and issues with his temper, further noting that he “tends to explode.” The Veteran stated that he has a sense of distance from others. He also reported poor sleep with frequent nightmares “about people trying to kill him and being blown up again.” A December 2012 VA treatment record indicates the Veteran reported having difficulty with short term registration and recall. He further reported feeling extremely irritable. A May 2013 treatment record notes that the Veteran reported experiencing lots of nightmares, reliving traumatic events every night, hypervigilance in crowds, emotional numbing, and feeling cut off from former friends. A June 2013 private treatment record notes that the Veteran presented with PTSD symptoms of difficulty with and avoidance of social settings, heightened startled response, diminished interest in historical pleasurable activities, recurrent early and mid-somatic nightmares of combat experiences, enhanced irritability, anger and difficulty establishing or maintaining positive relationships which interferes with daily social and economic functioning. VA treatment records dated in May 2014 note that the Veteran reported agitation, anger, irritability, anxiety, panic attacks two to three times per week, sleep disturbance and nightmares. A December 2014 VA treatment record notes the Veteran reported symptoms of irritability, anger, agitation, anxiety, panic attacks, depressed mood, poor concentration, and sleep disturbance. A June 2015 VA treatment record notes the Veteran reported that he cannot be around his family and was struggling to find his place in society. It was further noted that he was going to school and had not been able to find work due to pain in his back and feet. He further reported feeling numb and stated that he goes to cross fit but feels alone and does not interact much. He reported having two automobile accidents due to going into a “detached/dissociative state” with flashbacks. He reported “freak[ing] out” and not sleeping well. He then endorsed “vague suicidal thoughts with no plan or intention” and having “death wishes at times.” He further endorsed feeling irritable and angry. The Veteran was afforded another VA PTSD examination in February 2020. The examiner noted that the Veteran has no mental health diagnoses other than PTSD. She remarked that while it was possible to differentiate between some of his PTSD and TBI symptoms, noting that there is overlap with concentration and memory disturbances, she stated that it was not possible to differentiate which occupational and social impairments were caused by his TBI and PTSD symptoms. The examiner indicated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported mild memory loss, attention, concentration, and executive functions. Normal judgment and motor activity were noted. He further reported rapid mood fluctuations. Current PTSD symptoms were noted as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. Upon review of the relevant evidence, the Board finds that the evidence of record is against a finding for a greater than 50 percent rating for PTSD with TBI, prior to October 24, 2012. Specifically, the VA examination report dated in May 2012 notes occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran denied any current suicidal ideation and stated that although he had trouble with some former friends and his father, he enjoyed playing sports with his friends. The Veteran was also working and planning on attending college that fall. In addition, the June 2012 VA treatment record reflects that the Veteran denied ever having any serious suicide plans or any attempts. Although the Veteran reported irritability and that he sometimes threw things, the evidence of record did not support a finding that his PTSD symptoms included occupational and social impairment with deficiencies in most areas. For the foregoing reasons, a rating greater than 50 percent for PTSD with TBI, prior to October 24, 2012, is not warranted. As the preponderance of the evidence is against higher ratings, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. However, the evidence of record indicates that the Veteran’s PTSD symptoms worsened in severity based on VA treatment records dated October 24, 2012. Those records reflect that the Veteran had trouble functioning in college. Notably, the Veteran manifested unexplained intense anger, irritability, and issues with his temper, and that he “tends to explode.” The Veteran also reported feeling socially distant from others, including family and friends. In addition, subsequent VA treatment records and the recent VA examination report show that the Veteran’s PTSD symptoms included hypervigilance, depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 70 percent rating have been met from October 24, 2012. Importantly, the evidence of record documents that the Veteran’s PTSD resulted in difficulty in adapting to stressful circumstances, including having ongoing impaired impulse control that has resulted in irritability and anger outbursts. He has continued to endorse such symptoms, which are contemplated by the criteria for a 70 percent rating. In terms of occupational impairment, the Board specifically considered evidence suggestive that the Veteran’s psychiatric symptoms impact his ability to perform work or worklike tasks. In summary, affording the Veteran the benefit of the doubt, the Board finds that a 70 percent disability rating is warranted for the Veteran’s PTSD with TBI for the entire initial rating period. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board finds that a higher rating of 100 percent is not warranted as the evidence of record shows that the Veteran has continued to work in some capacity during the appeal period and has continued to maintain some relationships. Thus, total occupational and social impairment is not shown or more nearly approximated. Regarding the appropriateness of a separate rating for Veteran’s TBI symptoms, a May 2012 VA examination report notes a TBI diagnosis; cognitive impairment facets included: mild memory loss; normal judgment; occasionally inappropriate social interaction; always oriented to person, time, place and situation; normal motor activity; mildly impaired spatial orientation; able to communicate by and comprehend spoken and written language; and normal consciousness. Noted residuals of TBI include hearing loss, tinnitus, and headaches (for which the Veteran is service-connected). It was then noted that the Veteran would have problems with memory and would not be able to work if headaches occurred. It was further noted in the May 2012 VA PTSD examination report that it was not possible to differentiate the portion of his impairment that is caused by his TBI, noting that TBI and PTSD share a number of symptoms in common, including concentration problems, anxiety, anger, depression, and sleep disturbance. Moreover, the Veteran underwent VA TBI examination in February 2020. The examiner noted the objective evidence of mild impairment of memory and attention, concentration or executive functions resulting in mild functional impairment. The Veteran’s judgment was noted to be normal, and his social interaction was routinely appropriate, and he was always oriented to person, time, place, and situation. Regarding motor activity, the examiner opined that the Veteran’s motor activity is normal most of the time, but mildly slowed at times due to apraxia. The Board notes that the Veteran’s TBI has been manifested by residuals including headaches which are rated separately, and mild memory loss, attention, concentration, or executive functions resulting in mild functional impairment, and occasionally inappropriate social interaction. The Veteran’s memory impairment and social impairment have been considered in both the 50 percent evaluation for PTSD with TBI (prior to October 24, 2012) and the 70 percent PTSD with TBI rating (from that date), as discussed above. Regarding whether the Veteran’s symptoms of social impairment and memory problems are attributable to his TBI or PTSD, the Board finds that such symptoms are being compensated as part and parcel of the 50 and 70 percent evaluations already in effect for PTSD with TBI. See Mittleider, 11 Vet. App. 181 at 182. As noted above, the May 2012 VA PTSD examination report opined that it was not possible to differentiate the portion of his impairment that is caused by his TBI, noting that TBI and PTSD share a number of symptoms in common, including concentration problems, anxiety, anger, depression, and sleep disturbance. The February 2020 VA PTSD examination report indicated that while there is overlap with concentration and memory disturbances, it was not possible to differentiate which occupational and social impairments were caused by his TBI versus his PTSD. The Board notes that when it is not possible to differentiate the symptoms or the occupational and social impairments of PTSD and TBI, a single evaluation will be assigned based on the rating criteria that is most advantageous to the Veteran. The Board notes that although the Veteran was previously rated as 10 percent disabling for his TBI, the combined ratings with PTSD is more advantageous to the Veteran (as reflected in an August 2020 rating decision). As the Veteran’s symptoms of TBI-related mild cognitive impairment have been contemplated by his 50 percent rating for PTSD with TBI (prior to October 24, 2012) and his 70 percent rating for PTSD with TBI (from October 24, 2012), there is no basis for a separate compensable rating under Diagnostic Code 8045. His symptoms are currently specifically included in the 50 percent and 70 percent ratings under Diagnostic Code 8045-9411 and granting a separate evaluation would compensate the Veteran twice for the same symptoms. See 38 C.F.R. § 4.14. Accordingly, a separate compensable evaluation for residuals of a TBI based on the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table is not permitted. REASONS FOR REMAND The Veteran contended that it very difficult to work due to at least some of his service-connected disabilities, to include PTSD, headaches, and back and foot pain. The Board notes that the Veteran is currently service-connected for PTSD with TBI, rated as 70 percent disabling for PTSD; headaches, rated as 50 percent disabling; lower back disability, rated as 20 percent disabling; left lower extremity radiculopathy, rated as 20 percent disabling; right lower extremity radiculopathy, rated as 20 percent disabling; right knee derangement, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; right hip impairment, rated as 10 percent disabling; left foot crush injury, rated as 10 percent disabling; left shoulder strain, rated as noncompensable; right hip tendinitis, rated as noncompensable; right bundle branch block, rated as noncompensable; hemorrhoids, rated as noncompensable; gastroesophageal reflux disorder, rated as noncompensable; and left shoulder scars, rated as noncompensable. The Veteran’s combined rating is 80 percent from May 13, 2012, 90 percent from April 12, 2017, and 100 percent from February 12, 2020. VA treatment records indicate that the Veteran has been working three hours a day at a gym. Pertinent to the current claim, the record includes May 2012, October 2013, May 2017, August 2017, and February 2020 VA examination reports. In addition to the psychiatric symptoms noted above, which show the Veteran has a reduced ability to function in a worklike setting, the examination reports show that various other service-connected disabilities adversely impact the Veteran’s ability to function at work. For instance, a May 2017 VA examination report that the Veteran’s service-connected left foot condition “makes him unable to work.” Moreover, a February 2020 VA examination report states that the Veteran cannot sit or stand for a long time due to his low back disability and that he has come late to work or has not showed up to work because of his service-connected headaches. However, the record does not contain sufficient evidence for the Board to determine the Veteran’s work history during the relevant appeal period. As noted above, the Veteran stated that he is currently working roughly 3 hours a day at a gym, but the record also reflects that he was employed on a full-time basis for at least part of the appeal period. It is unclear when the Veteran stopped working full time. There is also an indication that the Veteran was enrolled full time in a university for part of the appeal period. Although he reported that he withdrew from school, there is also an indication that he finished a course of study. Thus, there is some ambiguity surrounding the Veteran’s education. As the record does not contain sufficient information for the Board to determine the Veteran’s education and work history, the issue of entitlement to a TDIU is remanded for further development. On remand the AOJ should provide the Veteran an VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. To the extent that the Veteran contends that any employment has been marginal or not substantially gainful, the Veteran should provide information concerning his earnings. The matters are REMANDED for the following action: Ask the Veteran to complete a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. To the extent that the Veteran contends that any employment has been marginal or not substantially gainful, the Veteran should be asked to provide information concerning his earnings during such periods, such as tax returns. The RO should complete any other development as may be indicated based on the responses received from the Veteran. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.