Citation Nr: 21026244 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-24 678A DATE: April 30, 2021 ORDER Prior to January 2, 2015, a rating greater than 30 percent for posttraumatic stress disorder (PTSD) is denied. From January 2, 2015, to January 28, 2020, a rating of 70 percent, but no more, for PTSD is granted. After January 28, 2020, a rating greater than 70 percent for PTSD is denied. REMANDED An effective date prior to January 28, 2020, for the award of a total disability rating based on individual employability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to January 2, 2015, the Veteran’s PTSD was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent period of the inability to perform occupational tasks, due to such symptoms as depressed mood, anxiety, and chronic sleep impairment. 2. From January 2, 2015, to January 28, 2020, the Veteran’s PTSD was productive of social and occupational impairment with deficiencies in most areas, due to such symptoms as intermittent suicidal ideations, near-continuous mood disturbances, and difficulty adapting to stressful circumstances. 3. After January 28, 2020, the Veteran’s PTSD was not productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to January 2, 2015, the criteria for a rating greater than 30 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411. 2. From January 2, 2015, to January 28, 2020, the criteria for a rating of 70 percent, but no more, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, DC 9411. 3. After January 28, 2020, the criteria for a rating greater than 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 2001 to March 2006, including foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Iraq Campaign Medal. The Veteran withdrew his hearing request in a November 2018 written statement. See 38 C.F.R. § 20.704(d); see also November 2018 Report of General Information. These appeals were previously remanded by the Board in April 2019 for additional development; with respect to the claims decided herein, the Board specifically directed that the Veteran be provided a new VA examination. As an adequate examination was performed, there is substantial compliance with the Board’s remand instructions. Also in April 2019, the Board remanded a claim seeking service connection for a left ankle disability. A July 2020 rating decision awarded service connection for lateral collateral ligament sprain of the left ankle. As this constitutes a complete grant of the service connection claim, this matter is no longer for the Board’s consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Increased Ratings The Veteran is pursuing higher ratings for his PTSD. Currently, he is in receipt of a 30 percent rating prior to January 2, 2015; a 50 percent rating from January 2, 2015, to January 28, 2020; and a 70 percent rating after January 28, 2020. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). As noted in the Board’s April 2019 remand, the DSM-5 is to be used for all applications for benefits, such as this one, which are received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. When adjudicating ratings for psychiatric disabilities under the DSM-5 standard, GAF scores should not be considered. Golden v. Shulkin, 29 Vet. App. 221 (2018). Accordingly, any GAF scores documented in the medical evidence will not be discussed herein. Prior to January 2, 2015 The Veteran is currently in receipt of a 30 percent rating for his PTSD prior to January 2, 2015. He has been rated in accordance with DC 9411, which establishes a 50 percent rating upon evidence of the following: • 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. In considering the frequency, severity, and duration of the Veteran’s symptoms, a rating greater than 30 percent is not warranted prior to January 2, 2015. The Veteran underwent one VA examination during this time. In November 2014, his primary symptoms were identified as anxiety and chronic sleep impairment. Behavioral observations were not documented at that time. However, the Veteran offered relevant testimony as to the impact of his symptoms on his daily functioning. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Notably, he reported a “good” relationship with his spouse, in addition to relationships with his children and extended family. His occupational history was sporadic, with the Veteran reporting that he was terminated from his position with an elevator construction company due to chronic absences to “attend appointments.” He pursued legal remedy through the National Labor Relations Board, which offered the Veteran the opportunity to return to work. He declined at that time, because he did not want to continue paying union dues. At the suggestion of his spouse, he later enrolled in a flight training program. However, he indicated that he had no interest in becoming a commercial pilot, given the age of his children. Instead, the Veteran occasionally assisted a friend who owned an HVAC business to earn money. Although the Veteran had previously used medication to manage his symptoms, he had ceased his usage to avoid any detrimental impact to his career prospects. Similarly, he had stopped attending therapy sessions with any regularity. Ultimately, his examiner concluded that a medical condition had been formally diagnosed, but symptoms were not severe enough to interfere with social and occupational functioning or to require continuous medication. Such a disability picture is typically commensurate with a noncompensable rating under DC 9411. VA and private treatment records spanning the period on appeal do not deviate from the examiner’s assessment to any notable degree. Collectively, this evidence speaks to the Veteran’s chronic anxiety and intermittent participation in therapy. In a January 2015 lay statement, the Veteran articulated that his psychiatric disability had not improved. Instead, his employment was terminated in 2009 due to his disability. In sum, the Veteran did not demonstrate occupational and social impairment with reduced reliability and productivity during the period on appeal, as required for the assignment of a 50 percent rating. His symptoms were mild in both scope and severity, and did not impair his social functioning to any significant degree. Rather, the Veteran maintained positive familial relationships throughout the period on appeal, and the record is silent for evidence of behavioral deficiencies such as impaired thinking, judgment, or affect. In offering this conclusion, the Board acknowledges the Veteran’s repeated contention that his employment was terminated in 2009 due to his psychiatric disability. However, his reporting on this topic is inconsistent throughout the record: at times, he attributes his unemployment to his PTSD, and at others represents an informed and willing choice not to pursue full-time work. Moreover, the Veteran appears to have had some capacity to function in a professional setting during this time, as evidenced by his temporary shifts with a friend’s company or his extended academic studies in a fairly rigorous field. As such, his testimony on this matter is not the most credible of record; rather, greater probative value is afforded to the medical evidence in this instance. See Miller v. Wilkie, 32 Vet. App. 249 (2020). In offering greater value to the medical evidence, it is noted that the November 2014 examiner assessed the Veteran as presenting with occupational and social impairment commensurate with a noncompensable rating under DC 9411. Although the Board will take no negative action against the Veteran in this respect, there is no basis upon which to award a higher rating during the period on appeal. Accordingly, the appeal seeking a rating greater than 30 percent prior to January 2, 2015, is denied. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. From January 2, 2015, to January 28, 2020 Next, the Veteran is seeking a rating greater than 50 percent for his PTSD from January 2, 2015, to January 28, 2020. Under DC 9411, a 70 percent rating is warranted upon evidence of the following: • 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 work-like setting); and inability to establish and maintain effective relationships. In considering the frequency, severity, and duration of the Veteran’s symptoms, a rating of 70 percent, but no higher, is warranted for his PTSD from January 2, 2015, to January 28, 2020. In a January 2015 initial counseling letter, the Veteran’s private examiner reported symptoms of anxiety and depression which were not being treated with medication. Additional symptoms included physical manifestations such as heart pounding, respiratory problems, and sweating; avoidance behaviors; mood disturbances; loss of interest; and impaired concentration. As such, the Veteran felt “distant or cut off from people.” He denied suicidal ideations at that time, but also reported sleep impairment and feelings of hopelessness, including about his family’s survival and his professional future. Upon evaluation, his examiner assessed the Veteran as presenting with moderately severe PTSD, with symptoms in the “low end of the severe depression range.” As such, the Veteran was provided with a VA examination in April 2016. At that time, his primary symptoms were recorded as follows: depressed mood; anxiety; suspiciousness; chronic sleep impairment; impairment of short- or long-term memory; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Despite his symptoms, the Veteran was able to perform the activities of daily living without any notable problems. He also demonstrated no impairment to his communication or thought processes during examination, instead presenting as cooperative and properly groomed; oriented in all spheres; with normal speech and thought content; and an expansive affect. Memory loss, hallucinations or delusions, or suicidal ideations were all denied. Accordingly, the examiner assessed the Veteran as presenting with occupational and social impairment with reduced reliability and productivity, commensurate with the criteria for a 50 percent rating, as currently assigned. The record also contains multiple psychiatric impairment questionnaires completed by various private practitioners. See Psychiatric/Psychological Impairment Questionnaires dated May 2015, January 2016, March 2016, and December 2018. In sum, these records speak to the Veteran’s history of chronic PTSD, ranging from moderate to severe. Originally, the Veteran was afforded a poor prognosis; by the 2018 evaluation, his counselor reported that she was “guardedly optimistic” that the Veteran would experience some symptom relief from counseling and his academic studies. Positive clinical findings consistently showed deficiencies in family relations, persistent irrational fears, deficiencies in work and school, depression affecting the ability to function independently or appropriately, the intermittent inability to perform the activities of daily living, mood deficiencies, difficulty adapting to stressful circumstances, intrusive thoughts, unprovoked hostility, and suicidal ideations. Panic episodes and sleep impairment were also noted. Psychiatric medication was unreported, in part due to the Veteran’s concerns regarding previous “adverse reactions.” Related work absences were estimated approximately three times per month, such that it was routinely found that the Veteran could not currently manage employment. Coping mechanisms included drinking and disordered eating, in addition to a worsening stutter. The remaining medical evidence, including VA and private treatment records, correspond with that discussed above. See generally VA treatment records and private treatment records from Dr. C.D.; see also November 2015 private treatment letter (reporting dental problems and headaches related to the Veteran’s PTSD). This evidence establishes the Veteran’s consistent participation in therapy to assist with managing his symptoms, which included hypervigilance, overreacting, and anxiety and other mood disturbances. Sporadic family challenges and suicidal ideations were reported. However, the Veteran was routinely counseled on appropriate coping mechanisms. He showed some progress in this respect, to include decreased overreacting and the completion of his airman certificate. The Veteran also presented certain lay evidence during the period on appeal. See also June 2016 representative’s statement. In May 2015, his father spoke of the Veteran’s strained familial relations, loss of confidence, and anxiety and depression. As a result, the Veteran was “stunted” in his ability to pursue certain goals and was dependent on others for assistance. The father also reported his belief that the Veteran’s “work-related issues” were due to his PTSD. In May 2016, the Veteran’s friend relayed an incident during the prior month when the Veteran contacted him in a state of distress. At that time, the Veteran described suicidal ideations and plan, with no intent. Nonetheless, the friend provided the Veteran with the number for a suicide hotline, which the Veteran later contacted. The friend also accompanied the Veteran to his April 2016 VA examination. At that time, he was described as agitated and disheveled. Additionally, the VA questionnaire triggered the Veteran’s symptoms, such that he demonstrated impaired memory and concentration, stuttering and shaking, and required assistance completing his forms. Collectively, the above evidence demonstrates occupational and social deficiencies in most areas, commensurate with the criteria for a 70 percent rating. In offering this finding, the Board acknowledges that the April 2016 VA examiner assessed the Veteran as presenting with a less severe disability picture than that warranting a 70 percent rating. However, adjudication of this appeal is not solely dependent on the findings of one VA examiner. Instead, the totality of the evidence speaks to a more severe disability picture than that depicted in April 2016. Compellingly, the Veteran’s mental health counselor routinely recorded pervasive and severe symptoms including mood disturbances, anger outbursts, and difficulty managing stressful situations. As a result, the Veteran’s family relationships suffered, and he presented with certain occupational deficits. It is also apparent that the Veteran presented with intermittent suicidal ideations which required outside support. Although he was capable of communicating effectively and appropriately with others, and did not require significant assistance with the activities of daily living, it is also shown that his symptoms were severely exacerbated when the Veteran felt triggered. During such events, he would exhibit physical manifestations of his stress response, such as heart palpitations, stuttering, and inconsistent eating and drinking habits. These symptoms, including suicidal ideations, near-continuous depression, and difficulty in adapting to stressful circumstances, resulted in occupational and social impairment with deficiencies in most areas. On this basis, a 70 percent rating, but no higher, is awarded from January 2, 2015, to January 28, 2020. The Board has also considered whether a 100 percent rating is warranted during this time. Such a disability picture is not present in this instance, as the Veteran remained moderately capable of functioning without assistance, completed an academic program despite his symptoms, and was consistently able to communicate properly and effectively with his examiners. Notably, the record is also silent for those symptoms which would warrant a higher rating in this case, including delusions or hallucinations, grossly inappropriate behavior, or memory impairment. Finally, considering the relationships that the Veteran maintains with his family and others, the Board cannot find that – however the Veteran’s symptoms are characterized – his PTSD symptoms have resulted in total social impairment as required for a 100 percent rating. Thus, a 100 percent rating is not warranted for the period on appeal. After January 28, 2020 Finally, the Veteran is seeking a rating greater than 70 percent for his PTSD after January 28, 2020. Under DC 9411, a maximum 100 percent rating is warranted upon evidence of the following: • 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. In considering the frequency, severity, and duration of the Veteran’s symptoms, it is not found that he was rendered totally occupationally and socially impaired due to his psychiatric disability from January 28, 2020, to the present. He underwent one VA examination during the period on appeal. In January 2020, his primary symptoms were recorded as follows: depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficult in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; suicidal ideation; and impaired impulse control. Despite his symptoms, the Veteran was on time for his appointment and showed appropriate grooming and hygiene. Affect was “full range,” depressed, and irritable. He showed mild psychomotor agitation throughout the examination. Thought processes were mostly linear and goal-directed, but he became “circumstantial” when discussing his PTSD. Speech was rapid but not pressured; sometimes loud but with otherwise normal rhythm. He maintained good eye contact and became tearful when discussing the impact of his symptoms on his family. However, the Veteran also described increased anger outbursts, sleep impairment, and depression, which he believed rendered him unable to function in a competitive work environment. Familial problems were also reported at that time. As such, the examiner assessed the Veteran as presenting with occupational and social impairment with deficiencies in most areas, commensurate with the 70 percent rating as currently assigned. There is a noted lack of additional evidence for consideration during the period on appeal, to include private treatment records or lay statements from the Veteran. Neither he nor his representative have offered any specific argument as to why a higher rating might be warranted during the period on appeal. Rather, limited VA treatment records show the Veteran’s ongoing participation in psychotherapy due to his PTSD. Upon consideration of the above, it is not found that the Veteran demonstrated total occupational and social impairment due to his psychiatric disability after January 28, 2020, as required for the assignment of a 100 percent rating. In offering this conclusion, the Board does not disregard that the Veteran experienced significant functional impairment during the period on appeal. Importantly, he showed near-constant depression and anxiety which considerably impaired his ability to adapt to stressful circumstances. As a result, he felt unable to sustain employment or schooling in competitive environments, which undermined his self-worth and capacity to provide for himself and his family. He also reported regular anger outbursts, which contributed to ongoing family, academic, and professional problems. However, a 100 percent rating requires that a veteran be totally occupationally and socially impaired due to his disability, and such a disability picture is not present in this case. Despite his symptoms, the Veteran does not appear to need assistance with the activities of daily living, to include basic grooming, hygiene, or the management of his own finances. See, e.g., January 2020 VA examination. Although he is unemployed, he functions as a stay-at-home parent who cares for his two young children. In medical settings, he has routinely shown himself capable of communicating appropriately and effectively with his treatment providers; impaired judgment or thinking has not been shown at any time. Critically, the majority of symptoms enunciated in the criteria for a 100 percent rating, including persistent delusions or hallucinations, grossly inappropriate behavior, disorientation, and memory loss, are absent from the record during the period on appeal. In offering this finding, the Board does not disregard the Veteran’s history of suicidal thoughts. However, it is not found that the severity, frequency, and duration of these suicidal ideations rises to the level contemplated by a 100 percent disability rating. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Rather, his suicidal ideations are sporadic in nature, and unaccompanied by plan or intent. During his January 2020 VA examination, the Veteran specifically stated that he “would never want to hurt his family in that way.” Moreover, VA treatment records spanning the period on appeal are entirely silent for reports of suicidal thoughts, let alone those accompanied by plan or intent. Thus, in viewing the Veteran’s disability picture as a whole, it is not found that he presents a persistent danger to himself or others, or that his suicidal ideations rendered him as totally impaired. Id. In sum, the evidence does not establish that the Veteran experienced total occupational and social impairment due to his disability, whether due solely to his suicidal ideations or the collective impact of all psychiatric symptoms, after January 28, 2020. Accordingly, his disability picture more nearly approximates the criteria for a 70 percent rating, and the appeal seeking a higher rating is hereby denied. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. With respect to each of these appeals, the Board has considered the Veteran’s testimony regarding the nature and severity of his symptoms. However, he is not competent to identify a specific level of disability according to the applicable DC. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno, 6 Vet. App. at 469. Instead, greater probative value has been offered to the medical evidence in assessing the severity of the Veteran’s disability during the periods on appeal, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran’s disability and had sufficient facts and data on which to base their conclusions. In this respect, the Board finds that the medical evidence supports the determinations offered herein. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeal. Despite the grant contained herein, the Veteran does not meet the minimum schedular criteria for a TDIU throughout the entire period on appeal (specifically, prior to January 2, 2015). The Board may not award an extraschedular TDIU without first referring the issue to the Director, Compensation and Pension Service, and a remand is required for this purpose. In this respect, the Board explicitly makes no finding, positive or negative, as to whether a TDIU is warranted. Rather, the Board is referring the Veteran’s claim to the Director in the interest of judicial economy. [CONTINUED ON NEXT PAGE] The matter is REMANDED for the following action: Refer the issue of whether a TDIU is warranted prior to January 2, 2015, to VA’s Director of Compensation Service for consideration on an extraschedular basis. Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.