Citation Nr: 21028992 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-34 044A DATE: May 12, 2021 ORDER Entitlement to an initial 70 percent disability rating for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran's PTSD manifests as occupational and social impairment with deficiencies in most areas, such as work, judgment, thinking or mood. CONCLUSION OF LAW The criteria for an initial 70 percent disability rating for the Veteran's PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 3.102, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from December 2007 to September 2011. In September 2019, the Board denied the Veteran's increased rating claim for her PTSD. She appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2011, the Court granted a Joint Motion for Partial Vacatur and Remand filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matter for readjudication. The Court determined the Board did not adequately discuss whether the Veteran was entitled to a higher disability rating based on the rating criteria for her TBI symptoms. Accordingly, the Board was instructed to fully discuss her TBI residuals, the possible applicability of Diagnostic Code 8045 to the appeal, and the October 2011 VA examiner's findings concerning the relationship between her PTSD and TBI. Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2020). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2020). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in February 2008. Fenderson v. West, 12 Vet. App. 119 (1999). 1. TBI Residuals From September 22, 2011 to January 10, 2017, the Veteran's TBI residuals were rated as noncompensable under Diagnostic Code 8045. 38 C.F.R. § 4.124a. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Id. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Id. Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table. Id. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, VA is to evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified." Id. VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate Diagnostic Code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed in Diagnostic Code 8045 here that are reported on an examination, VA is to evaluate under the most appropriate Diagnostic Code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Diagnostic Code 8045 instructs that VA should consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Id. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. Id. The first facet is memory, attention, concentration, and executive functions and is evaluated as follows: 0 for no complaints of impairment; 1 for a complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; 2 for objective evidence on testing of mild impairment resulting in mild functional impairment; 3 for objective evidence on testing of moderate impairment resulting in moderate functional impairment; and total for objective evidence on testing of severe impairment resulting in severe functional impairment. Id. The second facet is judgment and is evaluated as follows: 0 for normal judgment; 1 for mildly impaired judgment (for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision); 2 for moderately impaired judgment (for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, but having little difficulty with simple decisions); 3 for moderately severely impaired judgment (for even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision); and total for severely impaired judgment (for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, such as being unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities). Id. The third facet is social interaction and is evaluated as follows: 0 for routinely appropriate social interaction; 1 for occasionally inappropriate social interaction; 2 for frequently inappropriate social interaction; and 3 for social interaction that is inappropriate most or all of the time. Id. The fourth facet is orientation and is evaluated as follows: 0 if always oriented to person, time, place, and situation; 1 if occasionally disoriented to one of those four aspects; 2 if occasionally disoriented to two of those four aspects or often disoriented to one of them; 3 if often disoriented to two or more of them; and total if consistently disoriented to two or more of them. Id. The fifth facet is motor activity (with intact motor and sensory system) and is evaluated as follows: 0 for normal motor activity; 1 for motor activity that is normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities despite normal motor function); 2 for motor activity that is mildly decreased or with moderate slowing due to apraxia; 3 for motor activity that is moderately decreased due to apraxia; and total for motor activity that is severely decreased due to apraxia. Id. The sixth facet is visual spatial orientation and is evaluated as follows: 0 for normal visual spatial orientation; 1 if mildly impaired (occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions, but is able to use assistive devices such as GPS); 2 if moderately impaired (usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance, and has difficulty using assistive devices such as GPS); 3 if moderately severely impaired (gets lost even in familiar surroundings and is unable to use assistive devices such as GPS); and total if severely impaired (may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment). Id. The seventh facet is subjective symptoms and is evaluated as follows: 0 for subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships (such as mild or occasionally headaches or mild anxiety); 1 for three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships (such as intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light); and 2 for three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships (such as marked fatigability, blurred or double vision, or headaches requiring rest periods during most days). Id. The eighth facet is neurobehavioral effects and is evaluated as follows: 0 for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction (such as irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability); 1 for one or more neurobehavioral effects that occasionally interfere with workplace interaction or social interaction but do not preclude them; 2 for one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both, but do not preclude them; and 3 for one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Id. The ninth facet is communication and is evaluated as follows: 0 for ability to communicate by spoken and written language and to comprehend spoken and written language; 1 for occasional impairment of comprehension or expression of spoken or written language, but with the ability to communicate complex ideas; 2 for inability to communicate by or comprehend spoken and/or written language more than occasionally but less than half of the time, but generally with the ability to communicate complex ideas; 3 for inability to communicate by or comprehend spoken and/or written language at least half of the time but not all of the time, but with the ability to communicate basic needs and maybe with reliance on gestures or other alternative modes of communication; and total for complete inability to communicate by or comprehend spoken and/or written language, with the inability to communicate basic needs. Id. The tenth facet is consciousness and warrants a total rating if there is a persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma. As stated above, there is no lesser rating for impairment of consciousness. Id. Diagnostic Code 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. 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. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Id. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Id. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Id. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Id. Note (5): A veteran whose residuals of a traumatic brain injury are rated under a version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. Id. As the Veteran's service connection for TBI residuals is from October 31, 2008, Note (5) does not apply to the Veteran's case. The Veteran received a VA examination in November 2011. She reported frequent headaches, memory impairment, difficulty concentrating, and multiple psychiatric issues. The examiner noted that on examination there were no objective issues but noted the Veteran's subjective complaints. The examiner also concluded that her memory, attention, and concentration issues were caused by her psychiatric condition. Her most recent TBI VA examination was in February 2017. She continued to report having headaches and experienced poor memory. The examiner noted the Veteran's mild memory loss, mild impaired judgement, social interactions that were frequently inappropriate, and mild impaired spatial orientation. Her subjective symptoms were insomnia, headaches, and frequent mood changes. She was able to communicate by spoken and written language and could comprehend spoken and written language. Her consciousness was normal. His TBI residual was headaches, which when severe, would negatively interfere with her employment. The Veteran is correctly rated as noncompensable for her TBI residuals. The VA examiner evaluated the 10 facets of consciousness as required by the Diagnostic Code. While the Veteran's disability has worsened during the appeal period, her worsening symptoms are contemplated by his other service connected disabilities. See 38 C.F.R. § 4.124a. She is service connected for his headaches and PTSD, and the rating criteria for these disabilities contemplate her headaches, memory loss, and social deficiencies. The Board acknowledges that in October 2011 the VA examiner opined that the Veteran's PTSD symptoms were different than her TBI issues. Conversely, in May 2017, a VA examiner found it was impossible to differentiate between the two disabilities. The Board notes, however, that using the Diagnostic Code 8045 would not entitle the Veteran to a higher rating. When considering her overlapping psychiatric symptoms, the Veteran would only be entitled to a 40 percent rating because her social interactions were rated as frequently inappropriate, granting her a 2 rating under the fourth facet. The rest of the symptoms contemplated under Diagnostic Code 8045 were mild and thus would not entitle her to a higher rating. Accordingly, rating the Veteran's psychiatric symptoms under the Diagnostic Code for PTSD offers her the most benefit. 2. 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). 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's first VA examination was in October 2011. She reported symptoms of depression, hopelessness, poor energy, poor concentration, and anhedonia. Her depression and irritability also caused stress in her marriage. She also experienced panic attacks more than once a week, chronic sleep impairment, disturbance of motivation and mood, impaired impulse control, and difficulty in establishing and maintaining effective work and social relationships. The examiner concluded that his disability caused occupational and social impairment with reduced reliability. Her records also contain her mental health VA treatment records. The Veteran consistently reported feeling depressed and irritable. She would lash out, yell, and confront people. She experienced panic attack at times where her chest hurt, and she felt like she could not breathe. She also avoided crowds and other situations that would trigger her anxiety. She consistently denied suicidal thoughts or intent. She received another VA examination in May 2017. The Veteran reported similar symptoms as she did at her previous examinations and throughout her VA records. She continued to have trouble sleeping, nightmares, anxiety, depression, poor concentration, and poor memory. She had to switch her job because of her inability to focus and was anxious around guns, high ranking military members, crowds, and helicopters. The examiner opined that her PTSD caused occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform tasks. The Veteran's treatment records after her May 2017 VA examination continue to document her difficulties with anxiety and depression. The records show that while her symptoms were controlled with medication, at times her anxiety and panic attacks increased with stress at work. She also reported having increased bouts of depression. In June 2017, she went to the hospital for severe headaches and had suicidal thoughts because of the pain. The record also contains lay statements concerning her PTSD symptoms. The Veteran's representative noted that when she came to the officer her mental state was all over the place. She went from overly emotional to showing no emotion at all. He described her as irritable and prone to outburst. Additionally, she would express thoughts that her family and the world would be better off without her. Likewise, the Veteran wrote a statement describing her PTSD symptoms. She reported many of the same symptoms as previously described. She also reported having obsessive tendencies that interfered with her ability to function and that she had to fight daily against suicidal thoughts. She stated she had memory issues and became confused easily so began to carry a notebook to constantly write things down. The Board finds based on the evidence of record an increase to 70 percent rating is warranted. The Board notes the evidence documenting the Veteran's irritability issues, depression, and anxiety show evidence a higher rating is necessary. She also reported multiple panic attacks per week, difficulty in establishing and maintaining effective relationships, and battled obsessive tendencies that interfered with her daily life. Moreover, the Board finds that the Veteran's issue with memory provides probative evidence that an increased disability rating is warranted. The VA examiner noted the Veteran's PTSD symptoms are so intertwined with his TBI symptoms could not be differentiated. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2016); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Moreover, the Veteran reported having thoughts about self-harm, and suicidal ideation is contemplated by the 70 percent criteria. Accordingly, the Board finds the preponderance of the evidence is for the Veteran's claim and an increase to 70 percent is granted. A 100 percent rating is not warranted because total social impairment is not shown. While she experienced strain in some of her relationships, she reported having 2 friends. Additionally, she has remained employed for the entire appeal period, despite her PTSD. Though the Veteran prefers to avoid crowds and other social contacts, the evidence fails to show that she is completely socially isolated to the extent required for a 100 percent disability rating. Further, the evidence fails to show the Veteran's passive suicidal ideation resulted in any suicidal intentions or plans. Though, the Board acknowledges that self harm is contemplated by the 100 percent criteria, the Veteran's passive thoughts are not of the frequency, severity, or duration such that they cause or contribute to total social impairment, and the record does not show that he is a persistent danger to himself or others. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). "Total" is defined as "whole, not divided; full; complete," and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). The medical and lay evidence of record does not show this level of social impairment. The 100 percent criteria are not more closely approximated. 38 C.F.R. § 4.7, 4.130 (2020). Amanda E.H. Gibson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.