Citation Nr: 21024069 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-42 957 DATE: April 22, 2021 ORDER Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD), for the period prior to September 25, 2020, is granted. Entitlement to an initial rating in excess of 70 percent for PTSD is denied. REMANDED Entitlement to a total disability individual unemployability (TDIU) rating for the period prior to September 25, 2020 is remanded. FINDINGS OF FACT 1. For entire period on appeal, the Veteran’s PTSD is shown to have resulted in occupational and social impairment with deficiencies in most areas. 2. Total social impairment due to PTSD has not been demonstrated for any portion of the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating no higher than 70 percent for the period prior to September 25, 2020, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.159, 3.321, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.159, 3.321, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a Board Hearing in May 2020. This matter was remanded for further development in August 2020 for further development. While pending return to the Board, the RO increased the Veteran’s 50 percent rating to 70 percent and issued a TDIU. Both awards were made effective from September 25, 2020 forward. He continued his appeal. AB v. Brown, 6 et. App. 35, 38 (1993).   Increase Rating Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s psychiatric disability is rated under DC 9411. A 50 percent rating is assigned when a veteran's PTSD causes 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-term 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. A 70 percent rating is assigned with an 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. See 38 C.F.R. § 4.130 DC 9411. A 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; memory loss for names of close relatives, own occupation, or own name.   Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction (AOJ) on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The Veteran’s claim was certified to the Board in November 2017 and, as such, the DSM-5 applies to his claim. The Board notes that the DSM-5 removed reference to Global Assessment of Functioning (GAF) scores. Thus, the Board will not use previously recorded GAF scores to determine the appropriate evaluation. Golden v. Shulkin, 29 Vet. App. 221, 225 (2018) (“the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies.”). 1. Entitlement to an initial rating in excess of 50 percent for PTSD prior to September 25, 2020. 2. Entitlement to a rating in excess of 70 percent for PTSD from September 25, 2020. The claim stems from the initial grant of service connection made effective June 18, 2009. Following consideration of the record, the Board finds that the Veteran is entitled to a 70 percent rating, but no higher, for the entire period on appeal. On March 2015 VA examination, diagnoses were PTSD and major depressive disorder (MDD). Symptoms associated with the Veteran’s PTSD were anxiety, suspiciousness, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. No other symptoms were listed on examination. The Veteran was deemed to have occupational and social impairment with reduced reliability and productivity. The examiner was unable to differentiate overall occupational and social impairment between the Veteran’s two disabilities as the Veteran’s MDD was developed secondary to his PTSD and inextricably intertwined with the condition. In clarifying the relationship, the examiner specified that the Veteran’s PTSD symptoms of experiential avoidance; relationship difficulties; and lifestyle limitations were so severe as to cause his MDD. The examiner also explained that the conditions intensify each other. At the time of examination, the Veteran confirmed divorcing his third wife in June 2014. He reported living with his stepdaughter primarily. He reported his divorce was due to his “physical problems” doing his share of the housework and having communication problems with his spouse. The Veteran reported working with the U.S. Post Office from 1987-2011. He denied being retired from the Post Office at the time of examination and instead reported being out on workers compensation due to a non-service-connected condition. Behavioral observations included, disheveled appearance, with dirty clothes, anxious psychomotor behavior, mood and affect were sad and anxious with tearfulness at points. Speech was normal in rate, tone, and volume. Cognition was normal, thought patterns were coherent and goal-directed. There were no delusions, hallucinations, or obsessions. The examiner clarified that symptoms of the Veteran’s condition have been longstanding and present since at least 1994. Symptoms associated with his condition included restricted social life; feeling guarded most times; fearfulness about someone breaking into his home and harming him; insomnia; lack of energy; depression; and irritability. The examiner also confirmed that the Veteran suffered from a “Tic Disorder,” presenting during times of considerable stress. The disorder was noticeable on current examination. The Veteran also reported a history of suicidal ideation associated with his anxiety of not being able to sufficiently provide for his family. In May 2020, the Veteran testified before the undersigned. He continued reports of anxiety, depression, anger, difficulty maintaining romantic relationships, and difficulty with taking instruction from employers/working with coworkers. He reported maintaining relationships with family members, including his children and grandchildren. On September 2020 VA Examination, symptoms of MDD and PTSD were deemed to overlap and be inseparable. The Veteran was deemed to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported strained relationships with his siblings but occasionally visiting them. He reported a “not good” relationship with his father. He reported trying to maintain a relationship with his children. He reported occasionally talking to, and visiting his cousin, but tending to prefer his own company. He reported being unemployed. Symptoms on examination were depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty adapting to stressful circumstances including in a work like setting; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with period of violence. The Veteran’s appearance was consistent with his stated age. He was oriented times five and alert. He was highly cooperative and maintained good eye contact. His personal history was detailed in a logical and sequential manner. Insight and judgment were intact. Speech was normal. Thought process was linear, logical, and goal-directed. Hallucinations and delusions were denied and there was no evidence of bizarre, ideation, tangential or circumstantial thoughts, or inappropriate reactions to internal stimuli. His presentation was mildly dysphoric and tearful at times. Affect was appropriate with some flatness. Treatment medical records confirm the above symptomatology as well as ongoing anger and irritability requiring anger management classes and resulting in strained relationships with his former spouses, and employers. Records are negative for a report of suicidal ideation or attempt. Based upon the evidence of record, the Veteran’s PTSD is manifested by an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Throughout the appeal the Veteran’s symptoms have manifested in anger requiring specialized treatment, inability to handle worklike settings, inability to maintain successful marital relationships, anxiety resulting in facial “ticks”, suspiciousness causing him to be continuous fear that his home would be broken into, and depression. An examiner has also indicated such symptoms consistently impaired his ability to maintain relationships with individuals throughout all spheres of his life. Thus, after resolving all doubt in his favor, the Board finds that the Veteran’s overall disability picture most nearly approximates that of a 70 percent rating from the date of service connection June 18, 2009 forward. The Board acknowledges that the 2015 VA examiner did not opine that the Veteran’s symptoms were equivalent to a 70 percent rating. Nevertheless, the combined contemporaneous medical and lay evidence, when paired with the findings of the examiner, supports that the overall severity of the Veteran’s condition warrants a 70 percent rating for the period prior to September 25, 2020. However, a 100 percent rating is not demonstrated by the evidence of record, as the Veteran's PTSD is not manifested by total social impairment. 8 C.F.R. § 4.130, DC 9411. Throughout the appeal, the Veteran has maintained relationships, albeit at times strained, with his children, grandchild, siblings, and extended family who he at times visited. Such belies a finding of total social impairment. In addition, he did not exhibit gross impairment in thought processes, or communication; persistent delusions or hallucinations; grossly inappropriate behavior; an inability to maintain hygiene; time and spatial disorientations; or memory loss for the names of close relatives, occupation or his own name. To that end, staged ratings are also not applicable as at no point has the Veteran's disability more nearly approximated the criteria corresponding to a 100 percent rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fender v. West, 12 Vet. App. 119 (1999). In sum, entitlement to a 70 percent rating, but no higher, is warranted for the entirety of the period on appeal. (REMAND NEXT PAGE)   REASONS FOR REMAND 3. Entitlement to a TDIU prior to September 25, 2020. As indicated above, the Board’s TDIU analysis will focus on the period prior to September 25, 2020. As a result of the Board’s above award of a 70 percent rating for PTSD results in the Veteran meeting the schedular requirements for TDIU throughout the period on appeal. 38 C.F.R. § 4.16. What remains is ascertaining when the Veteran became unemployed and whether that unemployment was due to a service-connected disability. Currently, the claims file is unclear as to the date the Veteran became unemployed. First, the Veteran asserts he last physically worked in 2011, whereas his employer the U.S. Postal Service notes he last worked in 2014. See June 2017 VA Form 21-8940 and VA Form 21-4192. Second, both confirm that for years prior to his termination and/or retirement the Veteran was on leave and receiving workers compensation payments. Neither indicate the year employment ended. Of note, the Veteran’s employer as of, June 2017, indicated he was still listed as a current employee. The Veteran has also asserted, in a general sense, his Post Office position constituted sheltered employment. Given the conflicting evidence, and the Veteran’s general assertion that a TDIU rating is warranted “for the entire time he has been unemployed,” a remand is required to clarify the Veteran’s employment history for the period prior to June 25, 2020. His worker’s compensation records, which are not in evidence, should be obtained to assist with ascertaining periods of employment/the nature of the Veteran’s employment. The matter is REMANDED for the following action: 1. Contact the Veteran and obtain any necessary information and authorization to request all records in connection with the claim for Workers’ Compensation, including medical records and/or any administrative decisions. All such available documents should be associated with the claims file. 2. Request that the Veteran complete the following: (a.) An updated VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. (b.) Submit a VA Form 21-4192, Request for Employment information in Connection with Claim for Disability Benefits for all identified employers. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.