Citation Nr: 21025176 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-50 332 DATE: April 27, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total disability evaluation due to individual unemployability (TDIU) is remanded. FINDING OF FACT The symptoms and impairment caused by the Veteran’s PTSD more nearly approximated occupational and social impairment with deficiencies in most areas but did not more nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2010 to December 2011. She is the recipient of many medals and ribbons and served in a designated imminent danger area. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for PTSD, evaluated at 50 percent disabling effective from September 15, 2014. The Veteran timely appealed the initial rating assigned. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript is in the claims file for review. 1. Entitlement to an Initial Evaluation in Excess of 50 Percent for Service-Connected PTSD The Veteran disagreed with the 50 percent rating assigned to her service-connected PTSD in a July 2016 Notice of Disagreement. Under the General Formula for Mental Disorders (General 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 associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-18 (Fed. Cir. 2013). The Veteran’s PTSD is currently evaluated as 50 percent disabling. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held “that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.” Id. at 117. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. § 4.130. Per applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, not solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). The preponderance of the evidence supports a 70 percent rating for the entire appeal period from September 15, 2014 for PTSD. At the March 2021 Board hearing, the Veteran’s representative pointed out that the Veteran’s service-connected PTSD symptoms include suicidal ideation and that she is on medication for her mental health symptoms. The representative also noted that those who are closest to the Veteran such as her family members are who receive the brunt of the negative effects of her PTSD. The Veteran testified that she physically tries to hurt herself to stop panic attacks and come back to reality. Regarding occupational impairments, she testified that she has been going to school, but it is taking her a long time to get an associate degree and she is working towards her bachelors. She also said that she is exhausted, emotionally and physically drained, she gets agitated easily, and feels as though she has not slept in two days after just one day of work. Regarding her social life, she said she does not get out often, but if she does leave the house, she feels a disassociation to others and is nervous to get close to anybody. Three supportive written statements, by persons who know the Veteran personally, were submitted in April 2015. One friend, J.C. wrote that while the Veteran used to be able to hide her symptoms, they became more apparent over time such as being stressed out, not being able to be in crowds without drinking a lot, and problems controlling her anger such as unjustifiably snapping at her fiancé and her well-behaved dog. J.C. said she has to walk on eggshells around the Veteran, who is easily startled and outraged. Another friend, C.H. wrote that behind a very outgoing, energetic individual with little social setbacks, the Veteran is very tightly wound and bound to snap. He recalled one incident when she seemingly randomly stormed up to an acquaintance shouting obscenities in that person’s face. He also wrote about how volatile she is at the slightest “nudge” of something upsetting, such as when she snaps due to her dog barking and she will shout, swat at the dog, and throw things, and that she has punched a hole through a door in a rage. C.H. emphasized that the Veteran can become sour-mannered and difficult to be around in a matter of seconds. Another statement was written by the Veteran’s fiancé, N.B., who wrote that she brought issues home with her from Afghanistan after being gone from home for a full year, and within a month of coming back home, things would annoy her to the point of an unexpected and sometimes violent outburst. She punched holes in walls, smashed lamps, and ripped posters and paintings off walls. He wrote that relationships with friends were spread thin and relationship with family started to take a rollercoaster-like effect with a huge falling out, not speaking for months at a time until making up. Her relationship with her fiancé was also very rocky. At the May 2015 VA examination, the Veteran was in a relationship with her fiancé, though they had been close to separating, and she had some very good friends with whom she spent time. She reported being protective of her friends and having difficulty trusting and getting along with others and she did not like to talk to strangers. The Veteran experienced problems managing her anger, becoming verbally abusive, punching holes in doors, and attacking other people physically, and referenced a rollercoaster effect of being on various medications. The Veteran revealed that she drank more when in a crowded area which reduced feeling anxious but not being angry. Symptoms included panic attacks several times a day and anxiety episodes triggered by sound or lack thereof. The Veteran expressed that she had previously considered suicide, but since 2012 there were no further attempts or engaging in intentionally self-injurious behaviors, other than from punching holes in doors. The May 2015 VA examiner opined that the Veteran’s PTSD resulted in occupational and social impairment with reduce reliability and productivity and that there were no difficulties with activities of daily living due to mental health issues. The examiner did note that since the Veteran’s deployment, she had never fully regained her prior level of stability, though she displayed significant resilience. The severity, frequency, and duration of the Veteran’s symptoms which include but are not limited to suicidal ideation, impulse control and angry outbursts, self-isolation, depression, and anxiety most closely approximate the symptoms contemplated by a 70 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The fact that the Veteran’s PTSD has caused symptoms such as suicidal ideation during the appeal period is significant. The language of the general rating formula indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). A 100 percent rating, however, is not warranted during the appeal period. The preponderance of the evidence does not show the severity, frequency, or duration of psychological symptoms rise to the level contemplated by a 100 percent disability rating. The evidence of record shows there is social impairment. However, though relationships with family and friends are considered rocky and strained, the Veteran has maintained relationships with a couple friends and lives with her fiancé. The record also shows that the Veteran was oriented to person, place, and time, has not neglected personal hygiene, and did not have psychoses. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Moreover, regardless of social impairment, the record does not support a finding of total occupational impairment needed for a 100 percent rating. In this regard, there is evidence of employment and/or enrollment in school throughout the appeal period. The Veteran testified at the March 2021 Board hearing that she worked currently with no special accommodations. Therefore, the Veteran’s symptoms most closely approximate a 70 percent rating and an increase from 50 percent to 70 percent for the entire appeal period from September 15, 2014 is warranted. While the Veteran’s PTSD symptoms did not more nearly approximate the criteria regarding total occupational impairment because she was in fact working, whether she was capable of securing and following substantially gainful employment and therefore entitled to a TDIU and is addressed separately below. There is thus no inconsistency in denying an initial rating higher than 70 percent for PTSD and remanding the issue of entitlement to a TDIU. Cf. Brambley v. Principi, 17 Vet. App. 20, 24 (2003) (it is “premature for the Board to decline extraschedular consideration where the record was [ ] incomplete” on an issue relevant to the extraschedular determination, such as occupational impairment). REASONS FOR REMAND 1. Entitlement to a TDIU from September 15, 2014 is remanded. The issue of entitlement to a TDIU is part and parcel of every claim for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The record raises the issue of the Veteran’s entitlement to a TDIU as evidence during the appeal period from September 15, 2014, the date her claim for service connection for PTSD was received, indicates the Veteran’s service-connected PTSD, evaluated in this decision, may prevent her from securing and following substantially gainful employment. Specifically, in April 2017, the Veteran reported to a VA social worker that she did not feel as though she is able to work due to, at least in part, her mental health issues. The Board cannot adjudicate the issue of entitlement to a TDIU for any time during the appeal period because the record does not provide a full picture of her employment history. At the time of the March 2021 Board hearing, the Veteran was working on attaining an educational degree and testified that she had to turn down a good job to work at a liquor store. Medical evidence in the claims file shows in September 2014, the Veteran was working part-time as a fitness center daycare worker making $200 each month. At the May 2015 VA examination, the Veteran was two years into a degree program in Child and Family Development Sciences, and from the examination report appears she was attending school full-time and working part-time. Given the sporadic and incomplete information regarding the Veteran’s employment during the period on appeal, a remand is needed to develop evidence regarding employment history and for the AOJ to consider whether there were any periods of time from September 15, 2014 that the Veteran was not substantially gainfully employed. The matters are REMANDED for the following action: Develop and adjudicate the issue of entitlement to a TDIU, to include sending the Veteran a formal TDIU application form (VA Form 21-8940) if one has not yet been received. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.