Citation Nr: 21028267 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-12 560 DATE: May 10, 2021 ORDER Entitlement to a 100 percent disability rating for PTSD, for purposes of accrued benefits and/or substitution, is granted, from May 11, 2011 to July 2, 2012, and from August 8, 2014, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for ischemic heart disease (claimed as mildly prominent aorta and abdominal aortic aneurysm (AAA)), for purposes of accrued benefits and/or substitution, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to May 11, 2011, for purposes of accrued benefits and/or substitution, is remanded. Entitlement to an increased rating higher than 50 percent for PTSD prior to May 11, 2011, for purposes of accrued benefits and/or substitution, is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximate total occupational and social impairment, from May 11, 2011 to July 2, 2012, and from August 8, 2014. CONCLUSION OF LAW The criteria for a disability rating of 100 percent for PTSD have been met, from May 11, 2011 to July 2, 2012, and from August 8, 2014, for purposes of accrued benefits and/ or substitution. 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 had active duty service from January 1968 to January 1970. This case is on appeal to the Board of Veterans' Appeals (Board) from Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decisions dated in February 2011 and June 2011. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the AOJ in April 2014. Unfortunately, the Veteran died in December 2017 during the pendency of his appeal. In September 2018, the appellant was substituted as the claimant for the purposes of proceeding with the Veteran's pending appeal. In January 2020, the Board, in pertinent part, for purposes of accrued benefits and/ or substitution, denied service connection for ischemic heart disease; denied an increased rating higher than 50 percent for PTSD, effective prior to May 11, 2011; granted an increased rating of 70 percent, for PTSD, effective May 11, 2011, and 100 percent, effective July 2, 2012; and granted a 70 percent rating for PTSD, effective August 7, 2014. The appellant appealed the Board's January 2020 decision to the U.S. Court of Appeals for Veterans Claims (Court); and pursuant to a joint motion for partial remand (JMPR), in December 2020, the Court vacated the Board's decision insofar as the Board denied service connection for ischemic heart disease; denied higher ratings for the PTSD prior to July 2, 2012, and effective August 7, 2014; and did not address the issue of entitlement to a TDIU. 1. Entitlement to an increased rating for PTSD, for purposes of accrued benefits and/or substitution, currently rated as 70 percent disabling from May 11, 2011 to July 2, 2012, and from August 8, 2014 The appellant seeks, for purposes of accrued benefits and/or substitution, a rating higher than 70 percent for the Veteran's PTSD from May 11, 2011 to July 2, 2012, and from August 8, 2014. For the period from July 2, 2012 to August 8, 2014, the Veteran was assigned a 100 percent rating for his PTSD. This is the highest schedular rating available and this portion of the Board's decision was not remanded by the Court. Thus, the timeframe for the 100 percent rating for PTSD from July 2, 2012 to August 8, 2014, is not on appeal. 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). In the January 2020 Board decision that was vacated by the Court, the Board granted a staged rating of 100 percent for the Veteran's PTSD on the basis of a suicide attempt in July 2012. A rating of 70 percent was assigned from May 11, 2011 to July 2, 2012, and effective August 8, 2014. The JMPR noted that the Board failed to explain why entitlement to a 100 percent rating was not shown earlier than July 2, 2012, the date of the Veteran's suicide attempt, as the record shows that the severity of the Veteran's PTSD at the time of his suicide attempt had persisted for many months, and possibly a year prior to his attempt. See November 2020 JMPR, p. 6. Specifically, the JMPR noted that a December 2012 VA examination report shows that there were strong indications that the Veteran was functioning far below his current level for at least several months prior to his suicide attempt. The examiner further stated that the Veteran reported that his mood deteriorated significantly in the months perhaps a year prior to his suicide attempt. Id. The JMPR also noted that for the period from August 8, 2014, the Board's reasons or bases for denying a rating higher than 70 percent were inadequate because there was not a clear explanation for why his symptoms improved as of that date. Id. at 7-8. It was noted that the Board's findings that beginning in August 2014 the Veteran continued to have intermittent suicidal ideation but no plan or intent or suicide attempts appeared to be inconsistent with the Court's ruling in Bankhead v. Shulkin. Id. at 7. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a 100 percent disability rating from May 11, 2011 to July 2, 2012, and from August 8, 2014. The Board concludes that the Veteran's PTSD for the period from May 11, 2011 to July 2012, and from August 8, 2014, more nearly approximated the level of impairment required for a disability rating of 100 percent. 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. Effective May 11, 2011, VA treatment records, the December 2012 and November 2015 VA examination reports, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms more nearly approximating total social and occupational impairment because of the Veteran being in persistent danger of hurting himself. Most significantly, the record shows that the Veteran attempted suicide in July 2012 after intentionally overdosing on medication. While treatment records dated from May 2011 to December 2011 show suicidal ideation with no plan or attempts, hospital records from his suicide attempt in July 2012 show that he reported that his PTSD, combined with the stress of his responsibilities and family "built up and boiled over." A December 2012 VA examination report shows that the Veteran's symptoms that led to his suicide attempt had been persisting for up to a year prior to the attempt in July 2012. It was noted by the December 2012 VA examiner that there were strong indications that the Veteran was functioning far below this level of the last several months prior to his suicide attempt. The Veteran also noted on the examination that his mood had deteriorated significantly in the months (perhaps a year) prior to his suicide attempt. Therefore, this shows severe symptoms up to a year prior to July 2012 (i.e., July 2011), with suicidal ideation noted as early as May 2011. The Veteran persistently showed severe symptoms including feelings of worthless and not wanting to be alive. VA treatment records dated from August 2012 to September 2013, including a December 2012 VA examination report, show occasional suicidal ideation. In May 2014, the Veteran was pulled off of a train track by his son after the Veteran tried to step in front of a train. He had feelings of worthlessness, helplessness, and hopelessness, with PTSD negatively affecting most areas of his life in November 2015. On an April 2016 VA treatment record, it was noted that the Veteran was assessed to be at low risk for suicide; and that he was able to smile and joke but had underlying sadness. He also noted on treatment records in October 2016 and December 2016 that he had thoughts of wishing not to wake up from sleep, and thoughts of wishing to be dead. He was found to have a low-moderate risk of suicide in March 2014 (though this was only two months prior to being pulled off of the train tracks in front of an oncoming train in May 2014). The Veteran did not report having suicidal feelings at every treatment encounter, and his symptoms appeared to eb and flow in severity. Overall, and given the nature of psychiatric illness, the Veteran showed that his symptoms were more closely associated with being in persistent danger of hurting himself than not for the period from May 11, 2011. As the most probative evidence of record shows total occupational and social impairment, the maximum 100 percent rating is warranted, effective May 11, 2011 to July 2, 2012, and from August 8, 2014, for purposes of accrued benefits and/or substitution. REASONS FOR REMAND 1. Entitlement to service connection for ischemic heart disease (claimed as mildly prominent aorta and abdominal aortic aneurysm (AAA), for purposes of accrued benefits and/or substitution, is remanded. The JMPR noted that the Board should obtain a new medical opinion addressing whether the Veteran's herbicide exposure caused degeneration of the muscularis of the abdomen, which was noted by a 2016 VA examiner as the cause of the Veteran's AAA. See November 2020 JMPR, p. 3. The JMPR further noted that a VA examiner should state whether the Veteran's mildly prominent aorta, as noted on a February 6, 2007 VA outpatient treatment record, is a condition that is related to exposure to herbicides. Id. 2. Entitlement to a total disability rating based on unemployability due to service-connected disabilities prior to May 11, 2011, for purposes of accrued benefits and/or substitution, is remanded. The November 2020 JMPR found that the Board should have addressed entitlement to a TDIU as being on appeal as part of the increased rating claim for PTSD, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). See November 2020 JMPR, p. 7-8. The JMPR also noted that the Board should consider whether a new opinion regarding the Veteran's ability to obtain and maintain substantially gainful employment is warranted, given that a November 2015 VA medical opinion did not address whether the Veteran was unable to work due to his PTSD in combination with all of his other service-connected disabilities. Id. at 8. As the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised, the AOJ should develop the issue. Given that the Veteran has been assigned a 100 percent rating for PTSD, effective May 11, 2011, in this decision, the issue of entitlement to a TDIU, as of that date, is moot. The Veteran reportedly has not worked at any time during the appeal. See also June 2017 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). He testified at the April 2014 Board hearing that he was medically disabled since 2000 and that he had to have back surgery for the job that he was doing. See April 2014 Board hearing transcript, p. 10. U.S. Social Security Administration (SSA) records, even though it was noted to be due to his back disability, should be obtained as they could be potentially relevant to the Veteran's employability due to his PTSD prior to May 11, 2011. 3. Entitlement to an increased rating higher than 50 percent for PTSD, prior to May 11, 2011, for purposes of accrued benefits and/or substitution, is remanded. Finally, because a decision on the issue of entitlement to a TDIU prior to May 11, 2011 could significantly impact a decision on the issue an increased rating for PTSD prior to May 11, 2011, the issues are inextricably intertwined. A remand of the claim for an increased rating for PTSD higher than 50 percent, prior to May 11, 2011, is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's degeneration of the muscularis of the abdomen (which was found by an August 2016 VA examiner to be the cause of his abdominal aortic aneurysm (AAA)) is at least as likely as not related to the Veteran's exposure to herbicide agents in service. Alternatively, the examiner should state whether the Veteran's mildly prominent aorta, as noted on a February 6, 2007, VA outpatient treatment record, is at least as likely as not related to exposure to herbicide agents in service. 2. Obtain the Veteran's federal records from the U.S. Social Security Administration (SSA). Document all requests for information as well as all responses in the claims file. 3. Obtain a retrospective medical opinion addressing the functional impact of the Veteran's PTSD on his ability to perform occupational activities prior to May 11, 2011. To the extent that it is available, the examiner should review the Veteran's complete educational, vocational, and employment history and should note his previous complaints regarding the impact of PTSD (both alone and in combination with his other-service connected disabilities) on employment prior to May 11, 2011. The examiner should identify all limitations or functional impairment caused solely by PTSD (and in combination with his other service-connected disabilities) prior to May 11, 2011. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal: (i) service connection for ischemic heart disease (claimed as mildly prominent aorta and abdominal aortic aneurysm (AAA)); and (ii) entitlement to a TDIU prior to May 11, 2011; and, (iii) the inextricably intertwined issue of entitlement to an increased rating higher than 50 percent for PTSD prior to May 11, 2011, all for purposes of accrued benefits and/or substitution. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.