Citation Nr: 21030088 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-66 029 DATE: May 17, 2021 ORDER Prior to May 3, 2013, entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is denied. Beginning May 3, 2013, entitlement to an initial 70 percent disability rating, but no higher, for service-connected PTSD is granted. REMAND Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to May 3, 2013, the Veteran's service-connected PTSD more closely approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Beginning May 3, 2013, the Veteran's service-connected PTSD more closely approximates occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to May 3, 2013, the criteria for entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. 2. Beginning May 3, 2013, the criteria for entitlement to an initial 70 percent disability rating, but no higher, for service-connected PTSD are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A Board hearing was conducted at the VA Central Office in Washington, D.C. A transcript of this hearing is contained within the electronic claims file. The August 2013 decision now on appeal awarded the Veteran service connection for his PTSD; he was assigned a 30 percent evaluation effective February 2, 2012. The Veteran timely appealed via his August 2014 Notice of Disagreement (NOD). In an April 2020 decision, the Board increased the Veteran's rating to 70 percent, effective November 9, 2016the date of a letter from the Veteran's treating VA psychiatrist (Dr. J.B.), which, in the Board's view, represented the "earliest date on which the increased severity of [the Veteran's] condition [was] ascertainable based on the evidence of record." April 8, 2020, Board Decision at 8. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (CAVC). The Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved that appeal by way of a Joint Motion for Partial Remand (JMPR). The Parties agree that the Board previously committed error when it assigned the effective date of November 9, 2016, for the Veteran's increase. Specifically, the Board failed to address adequately why a rating in excess of 30 percent was not warranted prior to the November 9, 2016, date, as Dr. J.B.'s letter was premised on a review of the Veteran's file since November 2012. The Board also noted that the Veteran's disability "'increased in severity over time following his March 2013 VA examination.'" November 5, 2020, JMPR at 2. The Parties agreed that the Board's award of a 70 percent rating effective November 9, 2016, was a favorable finding that should not be disturbed on review. Id. at 1. Thus, the Parties submitted that the Board should address whether the Veteran is entitled to a disability rating in excess of 30 percent prior to November 9, 2016, and in excess of 70 percent thereafter. Ibid. In a November 23, 2020, Order, the CAVC adopted the Parties' JMPR, vacating the prior Board decision with respect to the issues identified. The Board has reassessed the evidence of record, and the issues now are as they appear on this decision's first page. The evidence and the Board's analysis now will be discussed. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. For psychiatric disabilities, a 100 percent disability rating contemplates 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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 inability to establish and maintain effective relationships. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. A 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 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 warrant a 10 percent rating. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant a particular rating, but are not meant to be exhaustive, and the Board need not find all, or even some, of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). If the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a specific rating, the appropriate, equivalent rating will be assigned. Id. at 443. The rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). VA is precluded from differentiating between the symptoms of the Veteran's service-connected PTSD and those of her other mental disorders in the absence of clinical evidence that clearly shows such a distinction. See Mittleider v. West, 11 Vet. Ap. 181, 182 (1998). Furthermore, because all psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be assigned that encompasses all of the Veteran's overlapping psychiatric symptoms, however diagnosed. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). In October 2012, the Veteran's wifeN.R.submitted a statement. There, she relayed the Veteran struggles with anger/irritability, loud noises, nightmares, and problems getting to sleep. The Veteran's VA medical center (VAMC) records indicate that he started seeking psychiatric care in October 2012. Entries from November 2012 show that the Veteran complained of nightmares, flashbacks, recurrent and intrusive thoughts, and avoided places or people that reminded him of past trauma. The Veteran also suffered from anger and irritability issues. By December 2012, the Veteran began taking medication. There initially was no reaction to the medication, but N.R. reported that the Veteran's temper was somewhat better and controlled and that he was less likely to react angrily. There were, however, negative memory implications with the medication. The Veteran agreed to partake in the VA's PTSD group therapy program the following month. Over the next five months, the Veteran's treatment notes indicate that he performed well in a social setting, talking about his PTSD and utilizing different techniques to control his adverse symptoms. Entries from January 2013 show that the Veteran expressed motivation to make positive changes to his life; he made progress lowering his anxiety while engaging in a social setting, such as taking trips to shopping centers. In February 2013, the Veteran actively encouraged younger group members to continue making changes in their relationships with their children now by learning from his own mistakes. The Veteran also was taught various breathing techniques to help reduce anxiety, and the group leader noted that the Veteran remained an active participant in the program. By the end of February, the Veteran had seen improvement in his reactions and ability to let go of the need for control; he was more relaxed and opened up about his PTSD treatment with his family. He developed more insight into his difficulty developing close friendships, which prevent him from having deeper, more meaningful relationships with people. He became more self-aware of his desire to be correct and in control, recognizing how this affects others around him and keeps them at a distance. He wants to get closer to people and be less judgmental. A February 2013 note from the Veteran's psychiatrist indicates that the Veteran still has significant anger issues, which the Veteran can control to some degree; nightmares and startled responses still exist. A March 2013 VA examination report noted mental examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran was diagnosed with PTSD that 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 medication. The report indicates that the Veteran has a poor relationship with his younger brother and sister, but that he has been married to N.R. for what was then fifty years. They have two sons, ages forty-eight and forty-four, both of whom work for the Veteran. The Veteran has four grandchildren and often has family get-togethers and enjoys cookouts. The Veteran loves visiting Civil War places and likes to read books regarding the Civil War and other wars as well, as he is a self-proclaimed Civil War and history buff. After separation from service, the Veteran began working as an auto salesman, which he did for the next forty years. In 2002, the Veteran started his own business selling auto parts, and he continues running that company with his two sons, dealing mainly with large dealerships. The noted symptoms on the report include anxiety, suspiciousness, and chronic sleep impairment. The Veteran's prognosis was guarded, and his impairment was mildmoderate. A May 2013 note states that the Veteran is stable and doing well; the Veteran believed that his therapy was extremely helpful and had no suicidal or homicidal ideation. In April 2014, N.R. submitted another statement. Among other things, she relayed that the Veteran has panic attacks more than once a week, impairment of short-term memory, impairment of abstract thinking, disturbances of motivation and mood, impaired judgment, and difficulty in establishing and maintaining effective work and social relationships. VAMC notes from November and December 2014 show that the Veteran began suffering from increased anger, acting out, anxiety in chaotic and noisy environments, and flashbacks. Treatment notes from the first half of 2015 show that the Veteran continually struggled with sleeping well, recurring dreams, irritability, flashbacks, and anxiety. By October 2015, N.R. indicated increased anger, depression, prolonged isolation, hyper vigilance, and exhaustion. In February 2016, the Veteran's providers described his symptoms as progressively worsening, noting increased withdrawal, irritability, and frustration. A November 2016 note states that the Veteran's activities were "constrained" due to his PTSD. In November 2016, Dr. J.B., wrote a letter discussing the Veteran's symptoms, which present significant interference to the Veteran's occupation and interpersonal and social functioning. The symptoms discussed by Dr. J.B. already have been recounted herein by his VAMC records. Notes from January and July of 2017 respectively state that the Veteran's overall condition was stable but that that he was experiencing new memory loss and balance problems. A May 2019 entry noted that the Veteran has strong familial support; he experiences no suicidal or homicidal ideation, but he has chronic PTSD with severe symptoms that, if not treated, are incapacitating. In October 2019, VA noted that the Veteran still struggled with anger, irritability, and that he isolates at home in a rural area. Nevertheless, the Veteran is future orientated with an extended-family vacation coming up to Florida. At the hearing, the Veteran testified that he has not been the one running his business since 2013. January 23, 2020, Hearing Transcript (Tr.) at 4. His son, however, testified that he took over running the business from his father around 20032004 due to the Veteran's struggles with PTSD. Id. at 46. Although she could not provide the date, N.R. testified about an altercation between the Veteran and another bar patron, which ended in the Veteran defenestrating the patron. Id. at 8. The Veteran confirmed that he still has a poor relationship with his siblings, stating that he has not spoken to them in thirty years; the Veteran socializes only with his wife, children, and grandchildren. Id. at 89. February 2020 VAMC notes indicated that the Veteran planned to a build a barn in the coming summer and travel by car to Utah with N.R. By May 2020, the Veteran and N.R. were quarantining due to the COVID-19 pandemic, but they still were able to FaceTime with their grandchildren. These entries indicate that the Veteran was not experiencing suicidal or homicidal ideation or audio or visual hallucinations. By January 2021, the Veteran reported that his sleep was somewhat better and that he was "staying asleep more." 1. Prior to May 3, 2013, entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD is denied. As will be discussed below, the Board will extend its previous award of a 70 percent rating back to May 3, 2013. The Board now will discuss why a rating in excess of 30 percent prior to that date is not warranted. The predominant symptoms of the Veteran's PTSD throughout the period on appeal are nightmares, flashbacks, intrusive thoughts, avoidance of places and people, irritability, anger outbursts, and sometimes memory problems. While the March 2013 VA examination suggests that that the Veteran currently was maintaining his own business at the time, subsequent testimony from the Veteran's son suggest that he (the Veteran's son) had to take over the business much earlier (20032004) due to his father's psychiatric problems. The Veteran testified that he currently does not engage in the business and that it became too difficult to manage, even getting into a physical altercation with a customer in 2008 or 2010. Tr. at 4, 6. Regarding social impairment, the record reflects that the Veteran maintained continuous social interaction with his family and group therapy. The latter proved to be an effective way for the Veteran to maintain his symptoms. The relevant VAMC records for this time period show that the Veteran was an active participant in his group therapy, sometimes offering advice to younger members of the group to help them avoid mistakes. The treatment notes display that the Veteran was increasing his social interaction by going to shopping centers despite them previously overwhelming him. Furthermore, the March 2013 VA examination discussed how the Veteran likes to visit Civil War places and frequently engages with his wife, children, and grandchildren, hosting cookouts. The Board concedes that the Veteran's PTSD has had a more severe impact on his occupational functioning than his social functioning. Nevertheless, the rating criteriafor all psychiatric ratingsrequire commensurate impact in both occupational and social functioning. Said another way, the rating to which the Veteran is entitled is the highest one where his occupational and social impairment align. For this time period, the Board does not find that the Veteran's social functioning rises to anything greater than a 30 percent disability rating. As stated, the Veteran frequently socializes and relies on family members for support; he engaged in group therapy/counseling for his PTSD with much success, finding it to be "extremely helpful"; and he often liked to visit historical locations tending to his interest in the Civil War. While the Veteran still exhibited some hesitance to large social interactions (such as malls), that type of impairment is recognized in his current 30 percent rating. The Veteran's apparent ability during this time frame to socialize with others in small, group-like settings shows the Board that an increase is not warranted. See 38 C.F.R. § 4.130, DC 9411. 2. Beginning May 3, 2013, entitlement to an initial 70 percent disability rating, but no higher, for service-connected PTSD is granted. Beginning May 3, 2013, the Board finds that an increased rating to 70 percent is warranted. While the Board previously determined that the increase was warranted beginning November 9, 2016, a second glance at the record reveals otherwise. As far as the Board can tell, May 3, 2013, represents the closest date on which the Veteran ended his group therapy through VA. As discussed above, the Veteran had great success in group therapy: he learned various techniques to help reduce anxiety, control his anger, be less judgmental, and more open to talking about his treatment. By all accounts, therapy was a win for the Veteran. The records thereafter, however, show that the Veteran's symptoms worsened. A review of the evidence discussed above easily highlights that finding. N.R. and the various VAMC records discussed how the Veteran's symptoms of anger, depression, irritability, hypervigilance, avoidance of crowds, etc. all worsened. The fact that worsening was not memorialized in one place until Dr. J.B.'s letter is of no significance. There is no evidence to suggest that, after the Veteran's group therapy ended, he has any social contacts other than N.R., his children, and grandchildren. With such limited social interaction and the specific avoidance of crowds/other people, the Board finds that the Veteran's impairment of social functioning warrants a 70 percent disability rating. Again, the Board already has discussed that the Veteran's PTSD significantly impacts his ability to work, but the Board cannot find that the Veteran experiences total impairment of social functioning. If anything has remained constant throughout this appeal, it is the positive relationships and support the Veteran receives from N.R. and his children. They, along with the Veteran's grandchildren, have been the continual social interaction that the Veteran embraces, despite his PTSD symptoms. Aside from those routine interactions, the record reflects that, during this time period, the Veteran had two vacations planned: one to Florida with N.R. and their extended family (presumably children and grandchildren) and to Utah with at least N.R. This social interaction and traveling are not the activities of one who experiences total social impairment. Therefore, the Board finds that a 70 percent disability rating, and no higher, is warranted for this period of the appeal. See 38 C.F.R. § 4.130, DC 9411. REASONS FOR REMAND The Board recognizes that it previously failed ot take into consideration the holding of Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). There, the CAVC noted that a claim for TDIU is part and parcel of a claim for an increased rating and can be raised either directly by the Veteran or indirectly by the record. If the latter is present, it is the Board's responsibility to take jurisdiction of the TDIU claim. If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge shall remand the case to the agency of original jurisdiction (AOJ), specifying the action to be undertaken. 38 C.F.R. § 20.904(a). As previously mentioned, the testimony between the Veteran and his son indicates that the Veteran has not been running the family business since roughly 20032004, and the Veteran's son testified that this largely was due to the symptoms of the Veteran's PTSD. Thus, the record raises the issue of whether the Veteran's service-connected PTSD has precluded him from securing or maintaining substantially gainful employment. See 38 C.F.R. § 4.16(a). In light of the staged rating back to May 3, 2013, and because the AOJ never has adjudicated the issue of TDIU, the Board wishes to afford the Veteran ever benefit of the doubt in maximizing his benefits. Thus, on remand, VA should send to the Veteran a complete application for TDIU and then readjudicate that issue. See 38 C.F.R. § 20.904(a). 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Send to the Veteran a complete application package for TDIU. 3. Conduct any other development deemed necessary, to include providing the Veteran an updated examination for his service-connected PTSD, and then readjudicate the Veteran's claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.