Citation Nr: 21024363 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-38 911A DATE: April 22, 2021 ORDER From May 12, 2014 to March 1, 2016, entitlement to a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted. From March 2, 2016, entitlement to a rating greater than 70 percent for PTSD is denied. Entitlement to an effective date of May 12, 2014 for the grant of a total disability based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. From May 12, 2014, the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. 2. The Veteran was unable to obtain and maintain substantially gainful employment as of May 12, 2014, due to his combined service-connected disabilities. CONCLUSIONS OF LAW 1. From May 12, 2014 to March 1, 2016, the criteria for a rating of 70 percent for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. From March 2, 2016, the criteria for a rating greater than 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for an effective date of May 12, 2014 for the grant of a TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1998 to June 2001, from January 2003 to January 2004, and from January 2005 to July 2006. This matter comes before the Board of Veterans' Appeals (board) on appeal from a July 2014 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran attempted to withdraw his appeal in November 2020. However, the Board determined in January 2021 that his purported withdrawal was unclear. Therefore, it notified the Veteran that month that he needed to specify which issues he desired to withdraw. He did not respond to the Board's letter. Therefore, the Board will, as indicated in the letter, resume appellate review of the issues listed above. Finally, the Veteran's representative submitted an Informal Hearing Presentation in March 2021. In relevant part, the representative stated: The Supplemental Statement of Case (SSOC) of September 14, 2020, notes that the VA considered the results of a November 2017 examination when making their determination. The fact that the VA relied, even in part, on results of 3-year-old examination is troubling, and does not afford the veteran a fair assessment. Where the record does not adequately reveal the current state of claimant’s disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination that is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s "evaluation of the claimed disability will be a fully informed one." Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The Board is required to make a determination as to the adequacy of the record and if it finds that the record is inadequate, remand is mandatory. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990). The Board acknowledges the argument, but it denies the request. An examination of the Veteran does not become outdated after any arbitrary amount of time. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran’s disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). A remand for a new examination of the Veteran’s level of disability should be based upon a finding that there is an indication in the record that condition has changed. Conversely, if, as here, there is no affirmative indication that the condition has changed, then the case should be decided based upon the available evidence and a finding that there is no indication that the condition has changed since the last examination. Issue 1: Entitlement to a rating greater than 50 percent for PTSD from May 12, 2014 to March 1, 2016 Issue 2: Entitlement to a rating greater than 70 percent for PTSD from March 2, 2016 Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. The law allows for an effective date up to one year prior to the date of receipt of a claim, sometimes informally called "the one-year lookback period." 38 C.F.R. § 3.400(o)(2). Specifically, if an increase in disability level was "factually ascertainable" within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred. Merits The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders. The rating criteria for psychological disorders such as PTSD provide a 10 percent rating for occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is provided for 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is provided 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., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided for 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 provided for 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. §§ 4.125-4.130. VA service connected the Veteran's PTSD in March 2009. It rated the PTSD as 30 percent disabling, effective January 11, 2008. The Veteran claimed an increased rating on May 12, 2014. In relevant part, VA treatment records and VA compensation examinations from July 2014, March 2015, March 2016, and November 2017 are of record. Mental health professionals have treated the Veteran extensively during the period on appeal, but the undersigned does not need to recount the findings exhaustively here as a consistent theme has emerged. To frame the issue, the Board starts with the AOJ's August 2016 rating decision. In it, the AOJ found that the Veteran merited a 70 percent rating, effective March 2, 2016. It explained: We have assigned a 70 percent evaluation for your posttraumatic stress disorder based on: • Difficulty in adapting to stressful circumstances • Difficulty in adapting to work • Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood • Suspiciousness • Depressed mood • Disturbances of motivation and mood • Difficulty in adapting to a worklike setting • Anxiety • Difficulty in establishing and maintaining effective work and social relationships We have increased your evaluation for this condition from March 2, 2016 because this is earliest date that we have sufficient evidence to show that your PTSD has deteriorated to a point that higher evaluation is warranted. The initial question is whether March 2, 2016 was the initial manifestation of these symptoms. A February 13, 2014 VA treatment record largely answers the question. In a 50-minute examination, the social worker who treated the Veteran noted that a former colleague treated the Veteran. This social worker, D.Z., treated the Veteran from March 2009 to March 2012 before his passing in June 2012. In the intervening two years, the Veteran reported "he has experienced worsening PTSD symptoms and a worsening psychosocial situation." The Veteran noted that his wife had divorced him, that he isolated himself, and had "worsening anxiety - shaking, swaying, rubbing fingers together." Additionally, the "Employment" summary is highly probative: EMPLOYMENT: Veteran reports that he was prompted to come in because of the impact his worsening symptoms are having on his employment. Veteran works at Torrance State Hospital as a forensics corrections officer. He reports he works in a ward with individuals who have committed “heinous” crimes and have successfully pled insanity. He says it is a lot of “murderers and pedophiles and schizophrenics.” He has had difficulty controlling his anger and temper at work, finds it difficult to be humane toward individuals who have been convicted of terrible crimes. He is able to utilize timeouts and breathing techniques, but not successfully every time. He has been reprimanded at work. He does not want to lose his job. Veteran denies active suicidal ideation. Endorses some passive suicidal ideation intermittently, wonders why he came back alive and other soldiers he was close with did not, wishes at times that he had not returned alive. States he would never commit suicide. He does have firearms, keeps them in a safe at home. He has the crisis line number. He speculates about admitting himself to the “psych ward,” feels that if his symptoms continue to worsen that may be necessary in time, as he does not like to feel out of control. He does not rise to the level of a 302 admission. He is not a risk to himself or others. He had a nightmare this morning, his dog woke him up and veteran punched a hole in his wall before orienting himself. His knuckles are bloodied. He has frequent nightmares and dreams about combat. Veteran reports that he does not hunt anymore, which used to be a pastime, as the last time he hunted, he shot a deer and started to cry because “the deer didn’t do anything to me.” Feels like a “bitch” because of that. He reports that he is applying for an increase in SC for PTSD. He reports he previously had resisted applying for SC or an increase, but now that his employment may be in jeopardy, he wants to ensure he gets benefits he needs/deserves. In summary, the social worker opined: 32yo, Caucasian, divorced Army veteran presents on-time for appointment today. Dressed casually in jeans and a hoodie. Hair is close-cropped, with beard, grooming appropriate. Eye contact has an averted gaze at times, especially at first. Veteran quite jittery, restless. Attitude is agitated, confrontative at times, polite at others. Speech is rambling, disconnected. Thought process logical with tangential qualities. Thought content unremarkable. Does not endorse perceptual disturbances. Mood is irritable, anxious; affect has lability from annoyed and bitter to laughing. Denies active suicidal ideation; does endorse recent passive ideation; denies homicidal ideation. Impulse control fair; sleep poor; completes ADLs; oriented x3, insight fair; judgment maladaptive but intact. The Board recognizes that VA examiners in July 2014 and March 2015 opined that the Veteran's symptoms corresponded to criteria supporting a 50 percent rating. Notwithstanding this, one excerpt from the July 2014 examination stands out. Specifically, it states: He reported he worked as a police officer in 2011, for his county in Pittsburgh. He stated he then worked in forensics at a state hospital. He reported he did not like this job, as he had to be in contact with criminals, in particular, pedophiles. He reported he resigned in March 2014, after “nearly beating a prisoner to death.” He stated he was under investigation for beating two men while on the job. He stated no charges were ever filed. He stated, “I had to retire, or I was going to end up killing someone. The justice system is so wrong.” He stated he did not enjoy his work as he was not able to do it the way he wanted to. He reported he will be getting Social Security disability in October 2014 and also receives his VA compensation. The combination of the February 2014 VA treatment record and the above excerpt suggest that the symptoms the AOJ used to support the 70 percent rating in the August 2016 rating decision existed as early as the date of the Veteran's increased rating claim, i.e., May 12, 2014. Moreover, the suicidal and homicidal ideation reflected in these records – symptoms not included in those the AOJ used to support the 70 percent rating – only buttress this conclusion. As noted above, if an increase in disability level was “factually ascertainable” within one year prior to receipt of the increased rating claim, then the effective date, under 38 C.F.R. § 3.400(o)(2), will be the date on which that increase is shown to have occurred. Here, the February 13, 2014 treatment record cites the Veteran's report of worsening symptoms after D.Z. stopped treating the Veteran in March 2012. Given the documented symptoms first increased in severity more than one year prior to May 12, 2014, the date of claim, 38 C.F.R. § 3.400(o)(2) does not apply, and the effective date is the date of the claim as under the general effective date rules. The remainder of the Board's analysis will focus on why the Veteran is not entitled to a 100 percent rating from May 12, 2014. First, the Board recognizes that the AOJ service connected the Veteran for a traumatic brain injury (TBI) in November 2017. It rated the TBI as 0 percent disabling, effective September 29, 2016. It also service connected the Veteran's tinnitus and headaches as residuals of his TBI, rating them as 10 percent and 0 percent disabling respectively, both effective September 29, 2016. As relevant here, the AOJ explained: VA regulations prevent the assignment of separate disability evaluations for comorbid and overlapping mental disorders and TBI unless each diagnosis and its respective symptoms and functional impairment can be distinguished as this would represent a violation of the law under pyramiding of symptomatology. (CFR 38 4.14). The examiners for the [November 2017] PTSD review examination and Initial TBI examinations were unable to completely separate the symptoms and impairment of the two conditions without mere speculation because of overlapping symptoms of comorbid conditions. The examiners were unable to separate out the occupational and social impairment (work, school, family relations, judgment, thinking and/or mood, etc.) and symptoms noted during PTSD review examination. Because your evaluation of PTSD is under appeal, no action has been taken on that evaluation. Because your TBI evaluation includes evaluation criteria that overlaps and is include in your current PTSD evaluation, those facets cannot be used in the determination of your TBI evaluation. Additionally, the AOJ's service connection of the TBI did not impact the Veteran's PTSD rating because the November 2017 PTSD examiner, like the August 2016 VA examiner, opined that the Veteran's PTSD manifested in symptoms commensurate with the 70 percent disabling criteria. Second, the Veteran has maintained a solid, robust relationship with his family during the appeal period. The Veteran stated at his 2014 VA examination that he is "close with his family and attends church with them." He also reported "help[ing] his father around the farm by cutting the grass and cleaning the coop." Later, the Veteran stated at his 2015 VA examination that his "parents are great, the greatest family in the world." Subsequently, the Veteran stated at his 2016 VA examination that he "has a close relationship with his family." Lastly, the Veteran stated at his 2017 VA examination that he "socializes by text with [his] parents" and that "he has a good relationship with them." Based on the foregoing, a total 100 percent rating is not warranted since, during the time period in question, the frequency, severity, and duration of the PTSD symptoms affecting occupational and social impairment were not total in nature. Principally, the Veteran remained able to maintain strong social contacts with his family. In making this finding, the Board recognizes that the Veteran’s workplace incidents at Torrance State Hospital suggest grossly inappropriate behavior in an occupational context. While serious, the Board finds they were isolated, infrequent, and discrete. Even if, arguendo, they supported a finding of total occupational impairment, the Veteran's symptoms would not warrant a 100 percent rating because such a rating requires total impairment in both the occupational and social spheres, the latter of which is not present here. Additionally, because the Veteran did not have gross impairment in thought processes or communication; persistent delusions or hallucinations; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own name; or other equally disabling symptoms, this also weighs against a finding of total social and occupational impairment. As a result, the Board finds that an increased disability rating of 70 percent, but no higher, for the Veteran’s service-connected PTSD is warranted for the entire period on appeal. Issue 3: Entitlement to an effective date earlier than March 2, 2016, for the grant of a total disability based upon individual unemployability (TDIU) TDIU Background Law The VA regulation defining eligibility for a TDIU is 38 C.F.R. § 4.16. This regulation, however, does not define the procedure by which a Veteran may claim a TDIU. Instead, VA practice and case law have defined two ways – formal and informal. A formal claim exists when VA receives a VA Form 21-8940. An informal claim, in contrast, is created pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Rice holds that a claim for a TDIU is part of any open rating issue (initial or increased) when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal, and it attaches for the entire rating period. A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In 2018, the U.S. Court of Appeals for Veterans Claims (CAVC), in Harper v. Wilkie, 30 Vet. App. 356 (2018), held that when, as here, the issue of entitlement to a TDIU becomes part and parcel of an underlying appeal for a higher disability rating, the grant of a TDIU does not bifurcate the appeal and a Notice of Disagreement does not need to be filed to challenge the effective date assigned for the award of a TDIU. If the grant of a TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the remaining period remains in appellate status. In 2019, the CAVC issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that “substantially gainful employment,” in the TDIU context, contains economic and noneconomic components; the economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Merits The AOJ granted the Veteran a TDIU in September 2020. It stated "the benefit is granted effective the date entitlement arose. Although you reported last working on March 23, 2014, you did not meet the schedular requirement for this benefit until March 2, 2016." Although the Veteran has not disagreed with the effective date, under Harper, the issue of an earlier effective date is on appeal. While the AOJ expressly based the TDIU on all the Veteran's service-connected disabilities, his PTSD drove the decision. Given that the Board has found that the 70 percent rating dated from May 12, 2014, almost two years prior to that awarded by the AOJ, the Veteran met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) as of May 12, 2014. As such, the dispositive question is whether his service-connected disabilities prevented his from performing substantially gainful employment from May 12, 2014 to March 1, 2016.   The record, as shown above in the PTSD analysis and highlighted in the AOJ’s September 2020 TDIU grant, reveals that the Veteran last performed substantially gainful employment on March 23, 2014, the date he resigned from Torrance State Hospital. As noted above, the Board has found that the Veteran's PTSD which occasioned the TDIU grant as of March 2, 2016 manifested in the same symptomatology on May 12, 2014. Thus, the Board may award an effective date of May 12, 2014 for the TDIU. However, while the Veteran last performed substantially gainful employment on March 23, 2014, the Board may not award an effective date earlier than May 12, 2014 because of the effective date framework articulated above. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.