Citation Nr: 21027448 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 12-10 556 DATE: May 5, 2021 ORDER Entitlement to a rating in excess of 70 percent prior to December 1, 2014, and in excess of 100 percent thereafter, for service connected post-traumatic stress disorder (PTSD) with depression and traumatic brain injury (TBI) with vertigo, to include the propriety of combining the ratings for service connected PTSD with depression and TBI with vertigo is denied. Entitlement to total disability due to individual unemployability prior to December 1, 2014 is dismissed. FINDINGS OF FACT 1. Prior to December 1, 2014, the severity, frequency, and duration of the Veteran's post-traumatic stress disorder (PTSD) with depression and traumatic brain injury (TBI) with vertigo symptoms did not more closely approximate total occupational and social impairment. 2. After December 1, 2014, the Veteran's PTSD with TBI approximated total occupational and social impairment. 3. The Veteran's service-connected TBI and PTSD manifested with symptoms that cannot be clearly separated. 4. On December 22, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal for entitlement to TDIU is requested. CONCLUSIONS OF LAW 1. Prior to December 1, 2014, the criteria for a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) with depression and traumatic brain injury (TBI) with vertigo have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, 4.124a, Diagnostic Codes 9411-8045. 2. The criteria for dismissal of the claim for entitlement to total disability due to individual unemployability prior to December 1, 2014 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55 (legacy). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2001 to November 2004, and from May 2007 to October 2008. This case has a long and extensive procedural history. Most recently, the Veteran's claims were remanded by the Board in a December 2020 decision. The Board finds that the RO has substantially complied with the December 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating in excess of 70 percent prior to December 1, 2014, and in excess of 100 percent thereafter, for service connected post-traumatic stress disorder (PTSD) with depression and traumatic brain injury (TBI) with vertigo, to include the propriety of combining the ratings for service connected PTSD with depression and TBI with vertigo The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent prior to December 1, 2014. The Court also directed the Board to address whether VA properly combined Mr. [REDACTED] PTSD and TBI ratings under 38 C.F.R. § 4.124a, DC 8045, Note (1). The Veteran contends that he disagrees with the effective date of the Board's grant of a 100 percent disability rating for PTSD. As background, the Veteran's PTSD with depression and TBI has been evaluated at 50 percent from October 18, 2008; 70 percent from August 27, 2010; and 100 percent from December 1, 2014. The Veteran is separately evaluated for post-traumatic headaches associated with residuals, TBI with vertigo (claimed as post-concussion syndrome, head injury) at 0 percent from October 18, 2008; 30 percent from October 31, 2013; and 50 percent from May 23, 2017. The Veteran was previously evaluated for residuals, TBI with vertigo (claimed as post-concussion syndrome, head injury) as noncompensable from October 18, 2008; and at 10 percent from October 31, 2012 to October 31, 2013. Additionally, the Veteran is service connected for aphasia/dysarthria associated with residuals, TBI with vertigo, rated as noncompensable from October 17, 2013. The Veteran is also receiving special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) due to his PSTD with depression and TBI with vertigo. At the time of the Veteran's August 2010 increased rating claim for PTSD, the Veteran was evaluated at 50 percent for PTSD. In a July 2011 statement, the Veteran's representative contended that the Veteran's PTSD symptoms were more analogous to a 70 percent rating than a 50 percent rating. A July 2015 rating decision increased the Veteran's PTSD rating to 70 percent from October 31, 2012; and 100 percent from December 1, 2014. A May 2016 rating decision increased the Veteran's PTSD rating to 70 percent effective August 27, 2010, the date of the Veteran's claim. In his March 2012 Form 9, the Veteran contended that his disabilities have been shown to continuously worsen, he has severe anxiety and panic attacks and lacks concentration, and he has been unable to gain employment because of his disability. The Veteran requested an 80 percent rate for his combined disabilities. The Veteran reported loss of sleep, feeling delirious and more frequent memory loss both short and long term. The Veteran further argued that his medication seemed to have lost most of its effect on controlling his nightmares and sleep disorder. The Veteran reported he had been withdrawn from much of his normal life due to the impact of PTSD. 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, 114-118 (Fed. Cir. 2013). The Board concludes that prior to December 1, 2014, the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. The Board notes that a 100 percent evaluation is the maximum available disability rating for PTSD. 38 C.F.R. As an initial matter, the Board finds that the AOJ's combination of ratings for the Veteran's PTSD and TBI was properly applied under 38 C.F.R. § 4.124a, DC 8045, Note (1). Note (1) indicates that there may be an overlap of manifestations of TBI residuals with manifestations of a comorbid mental or neurological or other physical disorder that can be separately evaluated under another diagnostic code. The Note further directs that if the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. The March 2014 VA examiner indicated that the Veteran's primary occupational or social functioning limitations arising out of his TBI were related to difficulties with concentration. The examiner indicated that these symptoms were potentially manifestations of both PTSD and TBI, and, thus, it was more likely than not that the symptoms could not be clearly separated. The Board also notes that the Veteran is separately evaluated for headaches as a residual of his TBI. 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. The Veteran underwent a VA examination for his PSTD in March 2010. The Veteran reported that he worries all the time and has trouble breathing several times a day. The Veteran reported he gets frustrated and angry easily and yells. On examination, the Veteran's orientation was within normal limits, appearance and hygiene were appropriate, behavior was appropriate, but had poor eye contact. The Veteran's affect and mood showed anxiety and depression. The examiner indicated the Veteran's near-continuous depression does not affect the ability to function independently. The examiner diagnosed the Veteran with PTSD and a TBI, as well as alcohol abuse secondary to the PTSD. The examiner indicated that the Veteran was more likely than not using alcohol to treat his PTSD and insomnia symptoms. The examiner assessed a GAF score of 61 and indicated the Veteran could manage his benefit payments in his own interest. The examiner further noted that the Veteran has occasional interference in performing ADLs because of fatigue and alcohol abuse resulting in mild impairment. The examiner also noted difficulty establishing and maintaining effective work and social relationships, difficulty maintaining effective family role functioning, intermittent inability to perform recreation or leisurely pursuits due to loss of interest, constant interference with physical health, no difficulty understanding commands. The examiner indicated the prognosis is fair and likely to improve with treatment. In January 2011, the Veteran underwent an updated examination regarding his PTSD. The Veteran reported he stopped drinking a month prior. The Veteran reported he was taking college classes. The Veteran reported significant marital difficulties. The Veteran also reported worsening PTSD. Upon examination, the Veteran was well-nourished and developed, neatly groomed, and casually dressed. The Veteran was alert and oriented in all spheres. The Veteran was noted to be pleasant, cooperative, logical, coherent, and relevant and considered a reliable historian. His speech was noted be normal with a euthymic mood and affect. No evidence of disturbances in thought content. The Veteran's memory was noted to be essentially intact. The Veteran had normal insight, abstract thinking and calculations, judgment, and reality testing. The examiner noted the Veteran's insight and judgment were impaired regarding alcohol. The examiner noted no inappropriate, ritualistic, or obsessive behaviors. The examiner assessed the Veteran with PTSD, alcohol dependence in early partial remission, and cognitive disorder, NOS (provisional). He assessed a GAF score of 50 for PTSD, 50 for alcohol dependence, and 65 for the cognitive disorder. The examiner also noted that the Veteran is able to administer his own financial affairs. The examiner indicated that the Veteran is mentally capable of performing ADLs, but has difficulty establishing and maintaining effective work, academic, and social relationships; able to understand simple and complex commands as well as retain and implement them for the examination; has never been suicidal and is not considered an imminent danger to either himself or others, but could become dangerous with the use of alcohol. The examiner further noted that the Veteran's cognitive disorder required further evaluation as his TBI appeared questionable. The Veteran underwent another VA examination for his psychiatric conditions in March 2014. The examiner noted diagnoses of PTSD, other depressive disorder, and alcohol use disorder, in partial remission. The examiner indicated that the Veteran's subjective symptoms of dizziness, headaches, hypersensitivity to sound and light as attributable to his TBI. The examiner indicated that the Veteran's insomnia and concentration problems were more likely than not overlapping with other diagnoses. The examiner also indicated that there is too much overlap among symptoms and all the Veteran's disorders to differentiate what portions of the occupational and social impairments are related to each condition as concentration problems were reported as the main occupational problem. The examiner also indicated that it was the Veteran's alcohol use disorder that negatively impacted his military career. The examiner further opined that it is not possible to differentiate what portion of the occupational and social impairment is caused by the TBI. As rationale the examiner indicated that the Veteran's reported TBI symptoms of concentration problems are also symptoms of PTSD. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideations, and impaired impulse control. The examiner also noted additional symptoms of irritability, suicidal ideation including passive thoughts of not wanting to live like this anymore, and alcohol use disorder. In sum, the examiner concluded the Veteran's condition resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. VA and private treatment records, the March 2010, January 2011, and March 2014 VA examinations, and the Veteran's lay statements show that the Veteran's PTSD with TBI residuals was manifested by symptoms associated with a 70 percent rating (depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideations, and impaired impulse control), and symptoms associated with a 100 percent rating (some difficulties performing activities of daily living). He also had symptoms that are not listed with a specific rating, such as irritability, suicidal ideation including passive thoughts of not wanting to live like this anymore, and alcohol use disorder. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating prior to December 2014. See 38 C.F.R. § 4.126. The Veteran reported that symptoms of anger, depression, loss of motivation, and alcohol abuse were not present daily, but would increase in severity during depressive episodes. Further, irritability, passive thoughts of no longer living, and alcohol use are similar to suicidal ideation and depression affecting the ability to function independently, appropriately, and effectively, which are contemplated by the assigned 70 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied intent, or a plan involving self-harm in existing treatment records, and during the March 2010, January 2011, and March 2014 VA examinations. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA and private treatment records and the March 2010, January 2011, and March 2014 VA examinations indicate that the Veteran was oriented in all spheres, had no evidence of disruption of thought process or content, no danger of hurting himself or other, and normal memory. While the Veteran did experience symptoms contemplated by a 100 percent ratingintermittent inability to perform ADLs due to alcohol abuse or depressive epsiodesthe evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating prior to December 1, 2014. The criteria for a 100 percent or higher rating are not met prior to December 1, 2014, and the appeal must be denied. A rating higher than 100 percent is not available for the period since December 1, 2014. Entitlement to total disability due to individual unemployability prior to December 1, 2014 The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the appellant has withdrawn this appeal (see the December 2020 Statement in Support of Claim from the Veteran) and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.