Citation Nr: 21029446 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-43 754 DATE: May 13, 2021 ORDER An initial 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms more closely approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial 70 percent rating, but no higher, for PTSD have been met. 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 served on active duty in the United States Army from June 1966 to June 1968, to include service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal and the Vietnam Service and Campaign Medals. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in February 2021. A transcript of the hearing is of record. At that hearing, the Veteran (through his attorney) expressly waived his right to have any evidence in his file reviewed by the Agency of Original Jurisdiction. Lastly, Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), provides that entitlement to TDIU, when reasonably raised by the record, is part of any claim for an increased rating. Here, the issue of TDIU has been raised by the record so it has been included as a separate issue. Entitlement to an initial 70 percent rating for PTSD is granted. The Veteran contends he is entitled to an initial 70 percent rating for his service-connected PTSD. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's PTSD with Adjustment Disorder is rated under Diagnostic Code 9440-9411. The General Rating Formula for Mental Disorders provides the following criteria: A 50 percent disability rating is warranted when there is 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, for example, retention of only highly learned material or 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. Id. 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 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 work-like setting; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, "a [V]eteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Turning to the evidence in this case, the record reflects that the Veteran received private treatment from Dr. J.B. for his PTSD. During an October 2014 evaluation, the Veteran self-reported the following: being extremely bothered by disturbing memories, thoughts, or images of a stressful military experience; repeated disturbing dreams of a military experience; suddenly acting or feeling as if a stressful military experience were happening again; feeling very upset when something reminded him of a stressful military experience; having physical reactions (i.e., heart pounding, trouble breathing, sweating) when something reminds him of a military experience; trouble falling or staying asleep; feeling irritable or having angry outbursts; difficulty concentrating; being "super alert" and watchful or on guard; feeling jumpy or being easily startled; avoiding thinking or talking about a stressful military experience or avoiding having feelings related to it; avoiding activities or situations because they are reminders of a stressful military experience; trouble remembering important parts of a stressful military experience; loss of interest in activities he used to enjoy; feeling distant or cut off from others; feeling emotionally numb or being unable to have loving feelings for others; and feeling as if his future was going to be cut short. Another October 2014 note indicates that the Veteran presented with an anxious mood and constricted affect. It was noted that he appeared well-groomed and was dressed appropriately. In November 2014, Dr. J.B. noted that the Veteran's girlfriend attended the session and reported multiple incidents where the Veteran experienced physiological symptoms associated with a panic attack. In the same session, the Veteran reported past suicidal ideation but denied any plan or intent. In January 2015, the Veteran self-reported symptoms of anxiety, panic attacks, depression, recurrent and intrusive distressing recollections of traumatic events, flashbacks, avoidant behaviors, feeling detached and estranged from others, insomnia, and anger. He described having positive relationships with all family members. He reported numerous romantic relationships in his life (although he indicated that none of the relationships lasted more than two years), described feeling that he was unable to love, and indicated that he had been in a relationship since May 2014. Regarding his social life, the Veteran reported two significant relationships with friends from childhood. He indicated that he was not as social as he once was, noting that his friends tell him he does not come around enough. The Veteran reported that he mainly keeps to himself and spends time with his girlfriend. Mental status examination revealed the Veteran was well-groomed and dressed appropriately, he was guarded but displayed appropriate eye contact, he was oriented, had normal speech and psychomotor functioning, had linear thought process, and had good insight and judgment. He denied experiencing any hallucinations, illusions, or delusions and also denied experiencing any current suicidal ideation or homicidal ideation. He reported past suicidal ideation but denied any intent. The Veteran was diagnosed with PTSD. Dr. J.B. noted that the Veteran experienced recurrent distressing dreams of the events; avoidance of stimuli associated with the trauma; and increased arousal characterized by symptoms including sleep problems, difficulty concentrating, irritability or outbursts of anger, hypervigilance, and exaggerated startle response. It was noted that the Veteran's symptoms had been occurring for longer than one month and caused significant distress in his social, occupational, and other areas of functioning. In March 2015, the Veteran reported a recent incident where he challenged another man to a fight. A December 2015 note reflects that the Veteran had a depressed mood with congruent affect. It was noted that the Veteran continued to grieve the loss of a friend. He was assessed for suicidal ideation but denied any plan or intent. A June 2017 note reflects that the Veteran was alert and oriented, his mood was depressed, his functional status was intact; and his affect was labile. It was noted that the Veteran appeared depressed. Another June 2017 note reflects that the Veteran was alert and oriented, his mood was dysphoric, his functional status was intact, and his affect was constricted. The Veteran reported that he continued to experience problems in his relationship with his girlfriend, noting a recent confrontation. In addition, the Veteran reported an incident where he was kicked out of the casino by security. A September 2017 note reflects that the Veteran reported he and his girlfriend had separated. VA treatment records also document the Veteran's PTSD symptoms. During an initial PTSD evaluation conducted in October 2014, the Veteran reported getting into arguments with others and indicated that he had been in over 200 physical fights. He also reported anger issues, indicated that things aggravate him as he gets older, and acknowledged a low frustration tolerance with others. He reported good interest and motivation and indicated that he enjoys exercising and spending time with his dog. He indicated that his concentration fluctuates and denied feeling hopeless or helpless, noting that he is an optimist and always thinks things will get better. The Veteran reported that his sleep was disrupted by dreams, but he denied experiencing nightmares (with the exception of one combat-related nightmare he experienced monthly). The Veteran denied experiencing hallucinations, illusions, delusions, racing thoughts, or other manic symptoms. He also denied a past psychiatric history, use of any psychotropic medication, suicidal ideation, and homicidal ideation. He reported that he consumed two to three mixed drinks weekly and denied use of nicotine, marijuana, or street drugs. The Veteran also reported that he had been retired since 2004, had never been married, and did not have any children. He indicated that he lived alone and that his sisters and niece provided him some support. He denied a history of legal problems but reported a history of violence as he confronts others. Regarding his symptoms, the Veteran reported thinking about the military daily. He indicated that media coverage of current military events trigger memories of his own combat experience and that combat nightmares surface once monthly and awaken him from sleep. He reported hypervigilance, noting that he scans the environment for safety. He denied having a startle effect with loud noises and avoiding military reminders. Mental status examination revealed the following: the Veteran was neat and had a casual appearance; good eye contact; normal speech; stable mood; reactive affect with congruent mood and situation; clear and logical thought process; no hallucinations, illusions, delusions, homicidal ideation, or suicidal ideation; alert and oriented; and intact judgment and insight. The Veteran was prescribed Sertraline for treatment. A December 2014 note indicates that the Veteran reported his interests and motivation were "very good." He denied anger episodes since his last session and reported that, although his concentration fluctuates, it was not impaired. He reported that his sleep was disrupted by dreams, but he denied the dreams were nightmares (with the exception of one combat-related nightmare he experiences monthly). He denied any significant anxiety, suicidal ideation, or homicidal ideation. In February 2015, the Veteran reported that he was in a good mood. He also reported side effects from his prescribed Sertraline and indicated that he had discontinued use of the medication. He denied worsening of his mood or anxiety without the medication. He reported that his relationship had recently improved. He denied suicidal and homicidal ideation. Mental status examination revealed the Veteran's affect was reactive and congruent with mood and situation, calm demeanor, stable mood, and clear and logical thought process. In May 2015, the Veteran reported receiving private treatment for his PTSD. He indicated that he had taken his girlfriend to some sessions and reported that their relationship was "rocky." It was noted that the Veteran's interest and motivation were good, that he exercised four days weekly, visited friends, and planned to travel during the warmer weather. The Veteran reported spending time running errands, completing crossword puzzles, and cleaning his home. The Veteran reported that his symptoms surface with military reminders and that he has hypervigilance which is present every time he goes out the front door. The Veteran did not report any sleep impairment and denied any significant anxiety, suicidal ideation, or homicidal ideation. Mental status examination revealed an affect that was reactive and congruent with mood and situation, calm demeanor, stable mood, and a clear and logical thought process. A July 2016 VA treatment record indicates the Veteran no longer received treatment for his PTSD at the VA. In December 2016, the Veteran denied suicidal and homicidal ideation. In April 2015, the Veteran underwent a VA examination. During the examination, the Veteran reported experiencing frequent daytime distressing ideations and intermittent nightmares (about four times per week) of military trauma events. He also reported that intrusive ideations of these events increased in terms of impact and level of distress he experiences. The Veteran reported that he is frequently physically active in his sleep and has been concerned that he is going to injure himself during these episodes. He indicated that the images and thoughts he has of his service relate to explosions, shots being fired, and witnessing other soldiers being severely wounded or killed in action. He stated that he continues to experience infrequent dissociative flashback episodes where he feels that he is back in Vietnam witnessing firefights. When the re-experiencing occurs, he is more often than not upset and irritable and also experiences increased heart rate, tearfulness, upset stomach, and brief disorientation. He noted that his re-experiencing episodes are triggered by certain smells; certain loud noises; watching war movies; seeing someone who resembles a soldier he served with; and sometimes news about violence, the world, and US troops. The Veteran reported that he avoids discussing his experiences in service, watching war movies, military-focused programing, and anything associated with traumatic events. He stated that he perceives himself as detached from family and friends and was hoping that with time he would be able to re-establish the level of physical and emotional attachment he desires with family and friends. He also stated he has difficulty experiencing and expressing warm and loving emotions towards others. The Veteran reported chronic sleep impairment, noting that he wakes up during the night about three to four nights per week due to distressing trauma related ideations. He reported achieving no more than five total hours of sleep most nights. The Veteran indicated that he noticed an increase in his number of episodes of irritability when in the community. He reported a mild level of dysfunction in cognitive skills including attention, concentration, and memory as he finds he must reread information in order to understand and remember the content of the material. It was noted that his current span of attention was no more than five continuous minutes on average. The Veteran reported that his immediate and short-term memory were mildly impaired but indicated that his long-term memory was functioning adequately. He also reported being in a state of alert throughout the day and night and described experiencing chronic hypervigilance in that he frequently finds himself checking the doors and windows of his home and being on guard much of the night. He also reported frequent awakening in the middle of the night when there is external stimulus with which he is not familiar and feels driven to assess for danger. The Veteran also reported exaggerated startle response in that many unexpected loud noises or being touched unexpectedly will result in a moderate spike in his level of arousal. The Veteran reported that he was previously employed by IBM but retired in 2004. Prior to that position, he worked for CIGNA as a customer service analyst. He reported receiving good job performance evaluations throughout his employment career. The examiner noted that the Veteran reported experiencing mild impairment in his social functioning. It was noted that the Veteran had been growing more socially isolative in the past decade. The Veteran reported that he had limited motivation to participate in social activities, including with his girlfriend. He described his current relationship as "pretty rocky" and indicated that he questions whether he has the ability to love anyone because he believes he lost a measure of his ability to trust and care for others while experiencing emotional distressing situations. The Veteran reported that he generally had successful relationships with his siblings but indicated that their frequency of contact had decreased. He reported that he believes some of his nieces and nephews avoid him because he isolates himself and because of his irritability. The Veteran also reported successful friendships, although he indicated that he waits to be contacted by friends rather than initiating contact and has been chastised by friends who want to see him more frequently. He indicated that he is very social in recreational and retail establishments, noting that he likes to be around people but then likes to leave them behind when he wants to be alone. Regarding his psychiatric history, he reported that he was prescribed Sertraline in 2014 but had discontinued use of the medication. He denied any legal history and reported drinking alcohol weekly in moderate volume. The examiner noted that the Veteran's symptoms included anxiety; suspiciousness; mild memory loss, such as forgetting names, directions, and recent events; disturbances of motivation and mood; and difficulty adapting to stressful circumstances, including work or a worklike setting. The examiner also noted that the Veteran was adequately groomed, oriented, displayed mild anxious affect during most of the session, reported his mood in terms of indicating an euthymic state existed, did not display any abnormal or inappropriate behavior, displayed an open and cooperative attitude, had normal speech, insight and judgment were intact, and concentration and memory were mildly impaired. The examiner noted that the content of the Veteran's verbalizations indicated reality-based, concise, adaptive ideations and that there was no evidence of formal thought disorder or psychotic thinking. The Veteran denied a history of suicidal and homicidal ideation. The examiner estimated that the Veteran's symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Finally, in February 2021, the Veteran testified at a Board hearing. During the hearing, the Veteran reported "going off," which he described as always being ready for physical fights. He recalled an incident in Vietnam which he reported thinking about daily, including when he wants to get into a physical fight. He also reported that he keeps a baseball bat in his bedroom, bathroom, and living room in case someone tries to break into his home (although he reported living in a safe neighborhood), going outside in the middle of the night to check and be sure his car is in the driveway, checking the locks on the doors, making sure all the cats are in the home, making sure the washer is not close to a nearby pipe, and sometimes going outside and walking around the yard. The Veteran reported that he cannot get out of bed until the last digit on the clock is a four because four is his favorite number. The Veteran also reported sleep problems, noting that he has a lot of nightmares. He reported "idolizing" suicide, thinking about suicide daily, and having details regarding how he would commit suicide. The Veteran reported having friends but indicated that he does not see or spend time with them often. He also reported that he last worked in 2004 for IBM but was fired. He had tried to obtain other jobs since then but was unsuccessful. He reported that he believed he would be able to work if it was not for his PTSD, noting that he did not think he would be able to work because he would get into fights and would have problems with management. The Veteran's girlfriend testified that the Veteran is always on edge, noting that he is always looking behind his back. She also reported witnessing the Veteran having "attacks" where he gets really dizzy, starts sweating, gets nauseous, and has to lie down. The Veteran indicated that the attacks occur when he is triggered by something that reminds him of his service. The Veteran's girlfriend also reported that the Veteran mentally abuses her, and she recalled an incident where the Veteran got into a physical fight with her brother and police were called. The Veteran reported that he sometimes sees things that are not really there and indicated that he sometimes hears knocking on the door at night but will find no one there. He indicated these experiences occur maybe once or twice per week. After review of the evidence of record, the Board finds the evidence demonstrates that the Veteran's symptomatology during the entire period on appeal most closely reflects symptoms resulting in occupational and social impairment with deficiencies in most areas. Most significantly, the record reflects that the Veteran experienced suicidal ideation on multiple occasions during the appeal period, which was of such frequency, duration, and severity as to indicate deficiencies in the areas of judgment, thinking, and mood. Additionally, there is evidence that the Veteran's ability to work was affected during the appeal period as he reported during the Board hearing that he sought work but was not hired and believes it was because of his PTSD. He also reported that he did not think he would be able to work because of his anger issues, interpersonal problems, and problems with management which he believed would lead to physical altercations. The Board also finds there were problems with the Veteran's family relationships as he reported problems in his relationship with his longtime girlfriend, feeling detached from his family, and a decrease in the frequency of contact with his siblings. The Veteran also reported growing social isolation, as noted in the April 2015 VA examination report, as he indicated that he has limited motivation to participate in social activities. In addition, he reported that his friends frequently tell him he does not spend enough time with them. Furthermore, the Veteran also experienced panic attacks, disturbances of motivation and mood, impaired impulse control with unprovoked irritability and periods of violence, difficulty adapting to stressful circumstances (including work and a work-like setting), and obsessional rituals (i.e., frequently checking doors and locks and not being able to get out of bed until the last digit on the clock is a four). The Board acknowledges that the April 2015 VA examiner estimated that the Veteran's PTSD symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. However, the Board finds that the frequency, duration, and severity of the Veteran's symptoms most nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or the criteria for a 70 percent rating. However, the Board finds a higher 100 percent rating is not warranted as the record does not show total occupational and social impairment due to symptoms such 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. Although the Veteran reported during the February 2021 Board hearing that he sometimes sees or hears things that aren't there, the Board finds the severity, frequency, and duration of that symptom does not reflect persistent delusions or hallucinations or rise to the level contemplated by the maximum 100 percent rating criteria as the record reflects the Veteran denied experiencing hallucinations and delusions at other times during the appeal period. In addition, while the Veteran has a history of suicidal ideation, the Board finds the severity, frequency, and duration of this symptoms does not rise to the level contemplated by the 100 percent rating criteria as the evidence of record does not indicate he is a persistent danger to himself as the record reflects he denies any intent. In addition, during the February 2021 Board hearing, he reported that he found a reason to live in being there for his cats. There is also no evidence of total social impairment as the Veteran reported having successful friendships, as noted in the April 2015 VA examination report, and by the fact that he remains in a relationship with his girlfriend. Therefore, the weight of the evidence is against a finding that a 100 percent rating is warranted. In summary, the Board finds that the Veteran's symptoms most nearly approximate the criteria for the assignment of a 70 percent rating, but no higher, for the entire appeal period because the record shows occupational and social impairment with deficiencies in most areas. As the Veteran had only requested a higher 70 percent rating, as noted on his December 2015 Notice of Disagreement and August 2017 VA Form 9, and he has been granted an initial 70 percent rating for the entire period on appeal, the appeal is satisfied. Thus, this decision constitutes a full grant of the claim. REASONS FOR REMAND Entitlement to TDIU is remanded. A TDIU rating, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Here, during the February 2021 Board hearing, the Veteran reported that he was unable to work because of his service-connected PTSD. Thus, the issue of TDIU has been raised in the context of this appeal. As noted at the hearing, however, it is ultimately up to the Veteran and his attorney to determine whether they collectively want to pursue this issue. If so, the Veteran is encouraged to return the formal application for a TDIU (which will be provided after this remand), as it contains a multitude of information helpful to VA in deciding his claim. Further, return of this form allows the AOJ to properly develop the issue prior to a formal Board decision. The matters are REMANDED for the following action: Provide the Veteran with a copy of VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Complete any development required on the claim for TDIU and adjudicate the matter of entitlement to a TDIU. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.