Citation Nr: 21025671 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-33 252 DATE: April 28, 2021 ORDER Entitlement to at least a 70 percent rating for posttraumatic stress disorder (PTSD) from August 31, 2010, to November 29, 2018 is granted. Entitlement to a total rating based on individual unemployability (TDIU) from August 31, 2010, to March 1, 2018 is granted. REMANDED Entitlement to a rating in excess of 70 percent for PTSD from August 31, 2010 to the present is remanded. FINDINGS OF FACT 1. From August 31, 2010, to November 29, 2018, the preponderance of the evidence shows that the Veteran’s PTSD was productive of at least occupational and social impairment with deficiencies in most areas. 2. From August 31, 2010, to March 1, 2018, the Veteran’s service-connected disabilities precluded substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for at least a 70 percent rating for PTSD have been met at all times from August 31, 2010, to November 29, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.14, 4.130, Diagnostic Codes 9411. 2. The criteria for a TDIU have been met at all times from August 31, 2010, to March 1, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1966 to July 1969 with service in the Republic of Vietnam from February 1967 to February 1968. In March 2018, the Board of Veterans’ Appeal (Board) remanded the appeal. While the appeal was in remand status, a June 2019 rating decision granted the Veteran a TDIU effective from March 1, 2018. This grant is not before the Board. Similarly, a July 2019 rating decision increased the 30 percent rating for the Veteran’s PTSD to 70 percent effective November 29, 2018. This grant is not before the Board. Therefore, because these claims have been pending since August 31, 2010, the Board finds that the characterization of the issues on appeal are as listed above. See AB v. Brown,6 Vet. App. 35(1993); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In an October 2019 decision the Board, in substance, denied the Veteran’s claims for a rating in excess of 30 percent for PTSD from August 31, 2010, to November 29, 2018, a rating in excess of 70 percent for PTSD from November 29, 2018, and a TDIU from August 31, 2010, to March 1, 2018. The Veteran appealed the October 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 order, the Court granted the parties August 2020 Joint Motion for Remand (JMR) vacating and remanding the October 2019 Board decision. The Rating Claim The Veteran claims, in substance, that he is entitled to a higher rating for his PTSD at all times during the appeal period. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s PTSD is rated as 30 percent disabling from August 31, 2010, and 70 percent from November 29, 2018, under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula)). The General Formula provides a 30 percent rating is warranted when the evidence shows occupational and social impairment with an 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 warranted when the evidence shows 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 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 depressive disorder 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted when the evidence shows 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. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Initially, the Board notes that this claim for a higher rating for PTSD was pending before the agency of original jurisdiction on or after August 4, 2014, because it was certified to the Board in September 2019. Therefore, the Board finds that the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (2013) (DSM-5) applies to the current appeal. See 53 Fed. Reg. 14308 (March 19, 2015); 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 (2017). Accordingly, the Board’s adjudication of this claim cannot include any discussion of the Global Assessment of Functioning (GAF) scores found in the record. See Golden v. Shulkin, No. 16-1208, Slip opinion at 5 (Vet. App. Feb. 23, 2018). Next, and as noted by the JMR, the record shows that the Veteran’s adverse PTSD symptomatology includes suicidal ideation during his stay at the Salem VA Medical Center inpatient PTSD program from January 2015 to March 2015 as well as a restricted/blunt affect and forgetting the names of his grandchildren. Additionally, the record also shows that the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation as well as mood at the January 2014 VA examination. Likewise, at the August 2015 private psychiatric examination the Veteran endorsed a depressed mood, anxiety, suspiciousness, and sleep impairment and it was opined that he had mild memory loss and impairment of short-and long-term memory with even memory loss for names of close relatives, own occupation or own name. The examiner also noted impaired judgment and abstract thinking, disturbances of mood and motivation, difficulty adapting to stressful circumstances, and a flattened affect. Tellingly, the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 “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 in most areas.”). (At the time of the Board’s 2014 earlier decision Bankhead did not exist.) The Court has also held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, when considering the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture and when resolving all reasonable doubt in his favor, the Board finds that the most probative evidence of record are the above medical records that shows that the PTSD adverse symptomatology approximates the criteria for at least a 70 percent rating at all times from August 31, 2010, to November 29, 2018, because they include, among other things, suicidal ideation, a restricted/blunt affect, a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short-and long-term memory with even memory loss for names of close relatives, own occupation or own name, impaired judgment and abstract thinking, disturbances of motivation, and difficulty adapting to stressful circumstances. See 38 C.F.R. § 4.130; Owens, supra; Fenderson, supra. The TDIU Claim While the Veteran already received a TDIU March 1, 2018, he claims that his service-connected disabilities prevent him from working at all times during the pendency of the appeal which runs from August 31, 2010, because it is part of his claim for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The record shows that the Veteran is service-connected as follows: • PTSD rated as 70 percent disabling from August 31, 2010; • coronary artery disease rated as 100 percent disabling from November 13, 2017, and 60 percent disabling from March 1, 2018; • left foot scar rated as 10 percent disabling from February 19, 2018; and • tinnitus rated as 10 percent disabling from December 14, 2012. In summary, this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher and had a combined rating of 70 percent or higher at all times from August 31, 2010, to March 1, 2018. Thus, the question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment at any time from August 31, 2010, to March 1, 2018. 38 C.F.R. § 4.16(a). In this regard, the Veteran’s VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), dated in August 2015, reported that he had not worked full-time and became he is too disabled to work in July 2011 because of his service-connected disabilities. As to his work history, the Veteran reported that from 1969 to 2011 he worked 60 hours a week as a brick layer for two different companies. As to his education, the Veteran reported that he had 3-years of college. As to the Veteran’s being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment as a brick layer as well as other possible employment that could make use of his work experience and 3-years of college, the Board finds that the medical records show that the problems caused by his service-connected PTSD, coronary artery disease, left foot scar, and tinnitus adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers, and carry out the tasks required by employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected connected PTSD, coronary artery disease, and tinnitus would make it dangerous for the Veteran and his co-workers for him to work in most non-sedentary employments including his prior employment as a brick layer. Id. Similarly, the Board finds that that the PTSD, coronary artery disease, and tinnitus would make it very difficult to learn the new skills needed to work in most sedentary employments, interact with his co-workers as well as any customers, and carry out the duties required by such employment for the first time. Id. Given the above, the Board finds that the Veteran’s service-connected disabilities prevent him from securing or following a “substantially gainful” occupation given his prior vocational history, work experience, and the impact his service-connected PTSD, coronary artery disease, left foot scar, and tinnitus have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment as a brick layer, because of the problems they would cause in any work environment. Further development of this issue is simply not warranted in light of the history of this case. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment at all time during the appeal and the claim for a TDIU from August 31, 2010, to March 1, 2018, is granted. See 38 C.F.R. § 4.16(a); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). REASONS FOR REMAND Initially, the Board notes that as discussed above the Veteran met the criteria for a TDIU from August 31, 2010. Therefore, while the remaining issue on appeal is in Remand status, the appellant, after consultation with her representative, may wish to withdraw the below claim (in writing). Entitlement to a rating in excess of 70 percent for PTSD from August 31, 2010, to the present is remanded. As to the claim for a rating in excess of 70 percent for PTSD from August 31, 2010, to the present, and as noted in the JMR, the record does not contain the Veteran’s treatment records for the post-November 29, 2018, time period to include his ongoing mental health treatment records from Dr. Russell at Counseling and Psychological Services. Therefore, the Board finds that a Remand is required to attempt to obtain and associate with the record these records. See 38 U.S.C. § 5103A(b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); but see Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Given the above development, the Board finds that while this issue is in remand status, the Veteran should also be provided with a new VA examination. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA’s duty to assist includes conducting a thorough and contemporaneous examination of the veteran that considers the records of prior examinations and treatment). This issue is REMANDED for the following actions: 1. In order to comply with the JMR, after obtaining all needed authorizations from the Veteran, associate with the claims file all outstanding private treatment records including from Dr. Russell at Counseling and Psychological Services. If possible, the Veteran or his representative should submit and new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment. Any help with the above would be appreciated. 2. In order to comply with the JMR, obtain and associate with the claims file any outstanding VA treatment records (if any). 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his PTSD from August 31, 2010, to the present. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to identify all pathology found to be present. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.