Citation Nr: 21031737 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-39 027 DATE: May 24, 2021 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to total disability based upon individual unemployability (TDIU) is remanded. FINDING OF FACT At all relevant times, the Veteran's PTSD was shown to be productive of a disability picture that more nearly approximates that of occupational and social impairment with reduced reliability and productivity; the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to February 1973. The Veteran served in Vietnam and received the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2019, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Since filing his claim for an increased rating, the Veteran's PTSD has been rated at 50 percent. At all relevant times, the Veteran asserts his anxiety disorder and its symptoms warrant a higher rating. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. The Veteran's PTSD is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 50 percent 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 such as, retention of only highly learned material, 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 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, or 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The record includes Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF was a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). Clinicians dealing with mental health issues currently use the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Given the procedural posture of this appeal, the DSM-5 applies. See 80 Fed. Reg. 14308 (Mar. 19, 2015) (DSM-5 applies to claims received by VA or pending before the agency of original jurisdiction on or after August 4, 2014). The United States Court of Appeals for Veterans Claims (Court) noted that the DSM-5 eliminated GAF scores because of their conceptual lack of clarity and questionable psychometrics in routine practice, and further stated that an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. The Court explained symptoms should be the primary focus when assigning a rating for a psychiatric disorder and clarified that the use of numerical GAF scores as a shortcut for gauging psychiatric impairment would be error. Further noted was that the adequacy of medical examinations has never depended upon the use or inclusion of GAF scores. Golden v. Shulkin, 29 Vet. App. 221, 224-26 (2018). Accordingly, the Board has not included any GAF score in its analysis. In a May 2008 VA examination, the Veteran reported treatment consisting of group therapy and prescription medication. He stated PTSD treatment is working "so-so" because he still gets angry "a lot." He has a pretty good relationship with his children from a prior marriage. He sees them infrequently. He reported frequent arguments and decreased interest in intimacy with his girlfriend. The arguments have become physical although no details were given as to frequency or how the arguments became physical. He has no friends and only sees the people in his group therapy sessions. He works on his car. The VA examiner thus observed the Veteran has a low level of psychosocial functioning as he isolates himself and has difficulty dealing with others including his girlfriend. The Veteran reported difficulty going to sleep and regularly wakes up at 2:00 am with difficulty getting back to sleep. He reported frequent nightmares. He reported his sleep difficulties do not interfere much with daytime activities as he has learned to live with it. The VA examiner observed the Veteran experienced moderate to severe PTSD symptoms every day. The Veteran experienced recurrent and intrusive distressing recollections and dreams. At times, he felt the traumatic event was recurring. He experienced intense psychological distress and physiological reactivity to internal or external cues or triggers of his PTSD stressors. The Veteran avoided thoughts, feelings, conversations, activities, places, or people that caused him to recall his stressors. The Veteran had a markedly diminished interest or participation in significant activities. He had feelings of detachment or estrangement from others. He had a restricted range of affect (e.g., inability to have loving feelings) and a foreshortened future. The Veteran also reported concentration difficulties, hypervigilance, and an exaggerated startle response. The concentration difficulties strained his relationship with his son because he forgot important events. The Veteran isolates himself. The isolation and hypervigilance negatively impacted his social relationships. His irritability negatively impacted his relationship with his long- standing girlfriend. The Veteran could manage his financial affairs. During the examination, the Veteran had an agitated mood, normal speech, and no psychomotor activity. He was cooperative and attentive. He had intact attention and remained oriented to person, place, and time. His thought process and content were unremarkable. He understood the outcome of his behavior and partially understood he had a problem. The Veteran did not report hallucinations, inappropriate behavior, obsessive/ritualistic behavior, or panic attacks. He did not have suicidal or homicidal thoughts. The VA examiner determined the Veteran had fair impulse control without any episodes of violence. He maintained minimum personal hygiene without any problem in activities of daily living. The VA examiner also determined the Veteran had moderately impaired recent memory and mildly impaired immediate memory, but normal remote memory. The VA examiner determined the PTSD symptoms resulted in deficiencies in thinking (unable to trust others, hypervigilant), family (difficulties with girlfriend with frequent fights and arguments) and work (irritability, hypervigilance, and isolation). PTSD caused a depressed, anxious mood. The Veteran is concerned others will due him harm. In June 2009, the Veteran felt on edge most of the time and was irritable and short tempered around others. The mental health provider noted the Veteran did not have any feelings of hopelessness, or suicidal or homicidal ideation. The Veteran had good memory and clear and orderly thought. The Veteran found group therapy helpful. In October 2009 his providers evaluated his PTSD. The Veteran chiefly complained about depression symptoms with morbid ruminations. He felt down most days. He described his current relationship with his girlfriend as a roller coaster ride. He had a strained relationship with his four adult children seeing them occasionally. He watches television and works in his garden. The Veteran reported occasional suicidal ideation but had no plan or intent. The Veteran had daily intrusive thoughts which then results in anxiety and sadness. He also clenches his jaw and has body sweats. He experiences nightmares 3-4 a week. The Veteran tries to avoid his intrusive thoughts or conversations by isolating or distraction. The Veteran lacked motivation and an interest in anything. He endorsed feeling worthless and that his life would be cut short. The Veteran was disconnected from his family and his girlfriend. He feels guilt about his disconnection from his family. He had a restricted affect. In February 2010, the Veteran reported continued struggle with daily functioning but also continued regular outpatient treatment. He reported increase difficulty and intolerance with social interactions and interpersonal relations within the past year. There was no clear precipitating event to the increase. The Veteran also reported sleep disturbance. In the mental status examination, the Veteran had an anxious affect with mild irritation. He did not report any hopelessness. The Veteran did not have suicidal or homicidal ideation, psychosis, delusions, or hallucinations, pressured speech, flight of ideas, or looseness of association. He had intact judgement and memory with clear cognition with orderly thoughts. The provider noted the Veteran had insight and motivation for treatment to redirect his irritability and agitation associated with PTSD. The following month, March 2010, the Veteran reported a problem with his dentist but used his anger management skills to handle the dispute. He also had difficulties with intrusive thoughts as nightmares. In June 2010, the Veteran reported he and his girlfriend had an argument where they mutually threw food at each other. The argument ended when she threw a knife at him. Although he felt like killing her, he left and went to his aunt's house. The girlfriend kept calling him to return and he did so. The Veteran denied a history of domestic violence. The Veteran was concerned for both his safety and hers because of his military training. The health care provider determined that the Veteran and the girlfriend were in no imminent danger. He and the Veteran also worked out a safety plan. While the Veteran was anxious and depressed, he did not have any suicidal ideation. In August 2010, the Veteran felt well- connected and is optimistic about the future. He had an appropriate affect and did not report any hopelessness. The Veteran did not have suicidal or homicidal ideation, psychosis, delusions, or hallucinations, pressured speech, flight of ideas, or looseness of association. The Veteran had intact judgement and clear cognition with orderly thoughts. Memory was intact. The provider noted the Veteran had insight and motivation for treatment. Sleep, energy, and appetite appeared stable. In October 2010, the Veteran reported frustrations with his girlfriend and her daughter in communications. He worked with the therapist on the difficulties and roadblocks due to intense emotions, trust issues, and trouble identifying benefits until after the fact. He reported sleep difficulties, and nightmares. In the mental status examination, there were no abnormalities or suicidal/homicidal ideation. Later that month, the Veteran expressed a desire to pause individual therapy. He named coping therapies he had learned that he found helpful. He now felt more in control. The Veteran found individual therapy too intense and triggered symptoms. He therefore wanted to take a break and try out his skills in self- dealing with his symptoms. He and the therapist agreed to taper down the frequency of sessions. In a December 2010 VA examination, the Veteran reported he received individual and group therapy. He also used antidepressant medication. His reported benefit from group therapy; it provided his only social outlet each week. While he worked with his therapist in individual therapy, the Veteran was unsure if it benefited him because his PTSD symptoms persisted. The Veteran had concentration problems, sleep problems, trust problems, and anhedonia. He was tearful in the interview regarding his isolation and chronicity of his PTSD symptoms. He tries to follow through with techniques he has learned in therapy such as attending his therapy sessions, taking his medication, and staying busy at home (e.g., gardening). Any occasional activities that he does engage in causes little to no satisfaction. He continued to live with his girlfriend, but has problems dealing with her. He has significant trust issues with her and his biological adult children. There are problems with irritability or outburst of anger. He denied physical acts of violence. His relationship with the girlfriend's daughter is strained as she is getting older. He is isolated from others, describing himself as a loner. He tries to avoid thoughts, feelings, places, or activities that bring up memories of Vietnam. The Veteran is hypervigilant. He could handle his financial affairs. The Veteran stated he had near daily intrusive thoughts about Vietnam, especially at night. The intrusive thoughts prevent him from relaxing. Nearly every night, the Veteran had sleep problems, particularly falling asleep due to intrusive thoughts at nighttime. His nightmares occur several times a week. He wakes up and unable to return to sleep. There is no history of suicide attempts or violence/assault. He had suicidal thoughts without plan or intent. The Veteran was clean and casually dressed but agitated. His speech, thought process, and thought content were all unremarkable. He was cooperative but irritable. He had an anxious, agitated, and depressed mood. The Veteran did not have any delusions or hallucinations. He understood the outcome of his behavior and that he has a problem. The Veteran had good impulse control. The VA examiner concluded the Veteran's chronic PTSD symptoms are in the moderate to severe range. The symptoms affect his ability to function in his significant relationships, socialize with others, attend activities, or even be alone due to his intrusive thoughts. He also had some symptoms of depression which are better accounted for by his PTSD diagnosis. While he has suicidal thoughts once a week, there is no intent or plan. PTSD affected his physical health (e.g., pain), family relationships, and ability to participate in and enjoy life. It affects his judgment and thinking because of his trust issues in himself and others. He is distant from his children, his "stepchild," and live in girlfriend. He has a depressed and irritable mood. This resulted in reduced reliability in all areas. Noting the Veteran does not work because of a physical disability, PTSD would still have likely affected his ability to work. Nevertheless, the VA examiner noted the Veteran previously worked in a profession that allowed him to work alone (truck driver). In January 2011, the Veteran reported seeing his grandson which made him feel good. He also reported that he has been trying not to talk during conversations and arguments. The therapist noted the Veteran demonstrated motivation and insight. He was making progress towards treatment goals. He reported similar problem-solving skills in March 2011 when discussing stressful events and his resulting anger. In November 2011, the Veteran reported nightmares with problems both falling asleep and fragmented sleep. He experienced intrusive thoughts with certain triggers such as fireworks. He also reported flashbacks, an increased startle response, depressed mood with a loss of motivation and interest. There was no history of impulsivity. The Veteran reported angry outbursts if pushed and he tends to isolate. In March 2012, the Veteran reported occasional bad dreams. He also stated suicidal ideation occurred six months earlier. The next month, April 2012, the Veteran reported not only continued nightmares but also reactivity and avoidance of his PTSD trauma reminders (crowds, anything involving heat and humidity, and mud). While the therapist noted the Veteran was mildly anxious, the therapist found the Veteran making progress. In May and June 2012, The Veteran reported using coping skills such as deep breathing for triggering events. He reported improved results although the symptoms were still difficult. In July 2012, the Veteran reported to his group therapy participants that he engaged in a playful activity (a slip-n-slide) which he found fun and it temporarily improved his mood. He also was very busy helping his daughter plan her wedding. The therapist noted the Veteran had become more prolific placing bad memories "in a container" and working on the emotions. He could now process the emotions more effectively but still tearfully reported feelings of sadness, loneliness, and loss. In August 2012, the Veteran joined a VA mediation/yoga group to help relieve his PTSD symptoms. Just after a September 2011hurricane in the area, the Veteran reported increased reactivity, nightmares, irritability, rigidity, and hypervigilance. He expressed difficulty adapting to events and feel/express compassion and understanding to family members who suffered property damage in the hurricane. In January 2013, the Veteran identified nightmares, anger, and intrusive thoughts as his three biggest PTSD complaints. In assessing the severity, however, the therapist noted the Veteran assigned a significant reduction in the level of severity. He vacillated between acceptance and shame about experiencing fear. That same month, he also reported car troubles and discussed with the therapist the areas he handled well and the areas that needed improvement. In February and March 2013, the Veteran reported finding both individual and group therapy helpful. He did not have any severe irritability. He had nightmares a few times a week every few weeks. He awakened in a panic state. The therapist noted no abnormalities in his mental status. The Veteran had good insight and judgement with no suicidal or homicidal ideation. In May 2013, the Veteran reported he found being in nature helpful. After both a friend and a cousin died, he experienced an increase in traumatic dreams. He continued to use therapeutic coping skills with some success. He expressed some homicidal ideations directed at a person who owed the Veteran money. This ideation occurred only a few times over the past two months, lasted 1-2 hours, and by June 2013, the Veteran had practiced his management skills to deal with it. He also reported going on vacation with his family. In September 2013, the Veteran reported reactivity symptoms to helicopters, jets, and planes. In October 2013, the Veteran had ambivalence about recovering from his PSTD symptoms. He feared resolution of PTSD would render himself unable to protect himself. A constant theme for the Veteran is his feeling that he is weak. The Veteran struggled with his disbelief that PSTD symptoms can improve. Nevertheless, the Veteran recognized this disbelief can impede his recovery. The Veteran and his girlfriend had plans to marry, which they did the next month. In a June 2015 VA examination, the examiner determined the severity of the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. He is tired of the nightmares and having thoughts about the war. At times he wants to cry because he is so tired of thinking about the war. It bothered the Veteran that he had no closure and became visibly upset and tearful when mentioning this to the VA examiner. The examiner noted that the Veteran's symptoms would probably be worse without his supportive skills/group therapy. On the other hand, more intensive therapy might plausibly reduce the severity of the PTSD symptoms. By this time, the Veteran had married his longtime girlfriend, living with her and his stepdaughter. The marriage had its ups and downs as the Veteran and his wife often get into arguments. They go out to restaurants twice a month. The Veteran has been his stepdaughter's father figure since she was two years old. He attends her dance recitals enjoying the children's progress over time. The Veteran talks to his children about once every three weeks. He also talks to his ex-wife every now and then. He denied any tension in those relationships. He has grandchildren and enjoys spending time with them. The Veteran denies involvement in any social groups or organizations. He attends church services with his wife almost every Sunday. The Veteran denied any part-time or volunteer work. He spends his time working in his garden and messing around the house." He had enjoyed physical activities such as walking and jogging until his heart condition two years earlier prevented such activities. The Veteran stated he did not have any friends except the people in his support group. He has a good relationship with his other support group members. He described it as a close-knit group, and they talk outside of the group setting. The group helps him out a little bit. Otherwise, he does not like being around people that much. He tried but had a hard time with individual therapy because he did not like talking about his Vietnam events. Medication is somewhat helpful, but the Veteran still has nightmares. The Veteran has not engaged in any violence except once during his first marriage. He awoke with his hand around her neck. He also slapped her once. He has not been in a fight for about 10 years. He denied physical altercations or destruction of property. He reported continued recurrent intrusive thoughts and dreams and intense or prolonged psychological and physiological distress to cues or stress reminders. He avoids avoid conversations, people, places, or activities that might trigger symptoms. He continued to experience anhedonia and feelings of detachment. The Veteran also had symptoms of hypervigilance, concentration problems, and sleep disturbance/chronic sleep impairment. The Veteran had persistent negative emotional state with a depressed mood, anxiety, and disturbances in motivation and mood. While Veteran reported traumatic forgetting and flashbacks, these symptoms were not present in follow-up questioning. The Veteran can manage his financial affairs. In December 2015, the Veteran reported communication difficulties with his wife because she is somewhat controlling. He did not enjoy much of anything except his gardening. There were no abnormalities in his mental status and no suicidal or homicidal ideation. In January 2017, the Veteran requested one session of individual therapy to help deal with the loss of a still born grandchild. He had been surprised by the intensity of the grief. He reported loving his wife but had trouble expressing it to her. He declined further individual therapy. Except for his sad, anxious mood, there were no abnormalities in the mental status examination. In April 2017, the Veteran reported his psychiatric medication was very helpful, but he experienced constant discord with his wife. They would bicker over minor things. He did not believe she would agree to couples' therapy. He still enjoyed his gardening and goes to his shed for "space." By October 2018, the Veteran reported a good mood most days and enjoyed being with his two- month old granddaughter. He had some intrusive thoughts and nightmares. In April 2019, when asked to describe his stress level, the Veteran stated his life was not perfect, but he could handle the stress. In October 2019, his PTSD symptoms were present but not worse. He had a stable mood even though he now acted as a caregiver for his wife after her surgery. He described feeling as protective of her as he was with the other members of his unit in service. In the December 2020 VA examination, the VA examiner stated the Veteran's PTSD symptoms resulted in occupational and social functioning impairment with reduced reliability and productivity. The Veteran is still married. Although the Veteran has a GED, the VA examiner noted the Veteran struggled at times with math and reading. The VA examiner suggested that this is not entirely due to PTSD. Currently, he attends group therapy twice a month and sees a psychiatrist every six months. He also takes medication. The Veteran feels treatment has helped. The Veteran reported recurrent intrusive memories and dreams. He experienced marked physiologic reactions to cues and tried to avoid memories or thoughts and external reminders (people, places, conversations, activities, objects, situations). The Veteran had persistent, distorted cognitions that caused self-blame and a persistent negative emotional state. The Veteran reported feelings of detachment and a persistent inability to experience positive emotions. He reported irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, concentration problems, and sleep disturbance. He also reported reckless or self-destructive behavior, but no examples were given. In addition, the Veteran had depression, anxiety, suspiciousness, panic attacks weekly or less, mild memory loss, impaired judgement, impaired abstract thinking, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The VA examiner also stated the Veteran had impaired impulse control such as unprovoked irritability with periods of violence. He did not provide any examples or elaborate on this finding The examiner stated the Veteran was well oriented. He found some impairment in common sense. His sleep problems included nightmares about war and death. The Veteran reported some sadness and anxiety. He indicated anger and irritability are problems. While the Veteran alluded vaguely to hearing whispers and voices, there are no clear auditory hallucinations and no evidence psychosis. The Veteran could handle his financial affairs. In his Board hearing, the Veteran testified that he stopped working in 2005 because of a job accident. Nevertheless, his PSTD affected him at work. People gave him a hard time even though they did not feel like they were giving him a hard time. As a result, he would get a little angry. He thinks his employer terminated him after the accident due to his inability to get along with people. The Veteran testified that his inability to get along with people is his biggest problem. People sometimes irritate the Veteran because they do not understand what he is going through. He has no social life at all. He does use his garden to ease the pain and help him relax. He testified that his nightmares cause him to hit his wife while he is still asleep. The Veteran testified that sometimes he feels like he wants to give up on life, but this does not happen all the time. It comes and goes and last occurred a couple of months earlier. He also does alright caring for himself, but his wife helps him. He reported seeing and hearing things and gets nervous. He stopped individual therapy because he had to talk about what happened to him in Vietnam. As a result, he felt like those experiences happened yesterday and the Veteran did not want to go through it again. After a review of the record, the Board has determined that throughout the appeal period the Veteran's PTSD has resulted in occupational and social impairment with reduced reliability and productivity. The Veteran has problems related to occupational functioning such as depression, nightmares, anxiety and panic attacks, anger and irritability issues, avoidance behavior, and relationship difficulties, but there is no indication these symptoms prevent him from functioning in his everyday life to the level contemplated by a higher rating. Symptoms demonstrative of a higher 70 percent rating generally interfere with routine activities and affect the ability to function independently, appropriately, and effectively. Such is not demonstrated by the Veteran's anxiety, panic attacks, stress reactions, isolation, irritability, avoidance, and other symptoms. The Veteran does not present symptoms severe enough that establish he has communication problems, is unable to take care of himself, has impaired judgment or thinking, or presents a threat to others. The evidence establishes the Veteran does not have any communication problems. He certainly does not have the difficulty contemplated by a 70 percent rating, such as intermittently illogical, obscure, or irrelevant speech. While the Veteran may have some issues with memory, the 50 percent rating already contemplates retention of only highly learned material and forgetting to complete tasks; memory difficulties more severe than this are not demonstrated. The Board notes the Veteran's concentration problems present a picture similar to difficulty in understanding complex commands or impaired abstract thinking. Again, both symptoms are demonstrative of a 50 percent rating. Thus, the Board finds his trouble concentrating or reports of memory loss are adequately accounted for by the 50 percent rating. As for the Veteran's anxiety, panic, stress reactions, and avoidance behaviors, these have not limited occupational or social functioning to the degree necessary for a higher rating. Notably, panic attacks more than once per week are specifically contemplated in the 50 percent rating. Anxiety is specifically contemplated in a 30 percent rating. The evidence is against a finding of obsessional rituals which interfere with routine activities, impaired speech, spatial disorientation, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, neglect of personal appearance and hygiene, or intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran has been casually dressed and presentable at his appointments and examinations; he has routinely been noted as oriented, and he has communicated normally and not displayed behavior outside of the norm suggesting a higher rating. As to impaired impulse control, overall, that has remained intact during the relevant period. There is a history of violence in the first marriage. In his current marriage, the Veteran reported once instance where he and his then girlfriend (now wife) threw food at each other. She then escalated the incident by throwing a knife at him. The Veteran, however, displayed judgment and impulse control. Rather than continue the argument or become violent himself, he left. Overall, his relationship with the girlfriend and now the marriage remained intact despite PTSD. Clearly PTSD has affected the relationship because they appear to argue often. Nevertheless, it is some evidence that he has an ability to establish and maintain the relationship even if it is difficult. Although the Veteran isolates himself and does not go out of the house much, the severity is not as severe as stated by him. He and his wife will eat out a couple of times each month. He goes to church with her and went on a vacation. He also has maintained relationships with his children and step- daughter although again, PTSD strains the relationships. He also sees his grandchildren which he enjoys. He enjoys seeing his stepdaughter's dance recitals. He also enjoys gardening as an activity and uses it to help deal with his PTSD. It allows him to remove himself from stress and relax. Thus, the Veteran's anhedonia is not limited as the Veteran argues. Diminished interest or participation limits his relationships but does not cause an inability to establish and maintain relationships. The record demonstrates that the Veteran's PTSD interfered with his occupational functioning. Specifically, he had problems with his irritability. While not required, the Board notes, other than the instance discussed above, there have not been any periods of violence towards another person. The Veteran has demonstrated an ability to handle his irritability/anger in a relatively effective, although not ideal, manner. The 50 percent rating recognizes that anger (disturbance of mood) is a problem causing impairment in maintaining occupational function, but it is not as severe as the picture for a 70 percent rating. Again, the Board is not saying there is no impairment; just that the impairment is not on par with deficiencies in most areas. As noted above, the Veteran has used coping strategies such as stepping away from places or situations and thinking about things before actions result in trouble. He also tries not to say anything and uses other techniques such as deep breathing and yoga/meditation. Someone who can use such strategies demonstrates evidence of intact impulse control and an ability to use judgment to walk away rather than continue an argument or confrontation. The severity of anger issues in the 50 percent criteria means a veteran often deals with his anger in an appropriate and relatively effective manner. The Board notes that when he developed anger at someone who owed him money and had homicidal thoughts, the thoughts were brief, and the Veteran again used coping strategies to deal with his anger. No violence resulted. Anger and irritability may result in reduced reliability and productivity, which is exactly what happened in the Veteran's case. However, the Veteran recognizes when he becomes irritable, angry, or anxious by the presence of other people and goes to his gardening shed, walks away from the situation, or utilize one of the coping techniques he learned from therapy. Thus, his irritability/anger problems resulted in difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Board, however, finds the severity of his anger is not shown to result in violence or to affect his impulse control or judgment to the level contemplated by the 70 percent criteria. Overall, the Veteran is able to maintain impulse control and demonstrated an ability to use judgment to walk away rather than start or continue an argument or confrontation. The severity of anger issues in the 50 percent criteria (or at a lower rating) means a veteran often deals with his anger at the workplace or social situation in an appropriate and relatively effective manner. It may result in reduced reliability and productivity but would not result in a more severe limitation of occupational functioning. For a 70 percent rating, anger would more typically result in periods which is not shown here. Instead, at best, there are isolated and brief incidents of violence which does not present a disability picture more closely approximating the severity contemplated by a 70 percent rating or higher. Sleep impairment is a problem for the Veteran, but chronic sleep impairment is specifically contemplated by a 30 percent rating. Further, the Veteran indicated to the May 2008 VA examiner, he has learned to live with his sleep problems which do not affect his functioning the next day. The Board acknowledges that the Veteran testified to thoughts about suicide ("give up on life") but it comes and goes. VA examiners and his psychiatric providers have, in all but a few medical notes, indicated no suicidal ideation. On most occasions, he has not expressed suicidal ideation. All reports of suicidal ideation have been passive suicidal ideation. Both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). As noted, when evaluating psychiatric disabilities, the Board considers the frequency, severity, and duration of suicidal ideations and the impact on the Veteran's life, rather than limiting consideration to the intention to act. His caregivers and the VA examiners have determined that he has no plans and there have not been any overt acts. Importantly, they have not found this symptom has inhibited his ability to function. Instead, he had suicidal ideation described as "occasional" or "sometimes" without intent. The evidence does not show the Veteran's suicidal thoughts or ideation affected his functioning; that is, interfering with task performance, activities of daily living, routine activities, etc. In sum, while the Veteran's symptoms include occasional passive suicidal thoughts, this symptom has not affected his ability to function independently or created a deficiency in most areas of the Veteran's life. This includes consideration of the Veteran's difficulty is adapting to stressful circumstances, which could be demonstrative of a 70 percent rating. 38 C.F.R. § 4.130. The severity and frequency of suicidal thoughts must be sufficient to cause occupational and social impairment with deficiencies in most areas for a higher rating to be warranted; such is not shown in this case. The Veteran's description of his occasional suicidal thoughts, coupled with the fact he did not mention them to his psychiatric providers, indicates these thoughts do not play a significant role in any impairment of occupational and social functioning. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative. The Board is required to assign an evaluation based upon all of the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126. In short, the Board finds the Veteran's psychiatric symptoms are fully contemplated by the 50 percent rating assigned by this decision and the disability picture does not approximate the level of severity warranting a 70 percent rating. This is well supported by the record, to include the findings of VA examiners that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity or a lesser degree of impairment. Overall, the evidence is against a finding that the symptoms are near continuous and affect the ability to function independently, appropriately, and effectively, such as contemplated in the criteria for a higher 70 percent rating. In short, the Board finds his symptoms of depression, anger, motivation loss, avoidance behavior, hypervigilance, social isolation, startle response, intrusive thoughts, and sleep disturbance with nightmares are already incorporated into the 50 percent rating. The Board finds that the Veteran's PTSD does not present a disability picture more closely approximating the level of severity or symptoms of the type, extent, and frequency warranting a 70 percent rating, or 100 percent rating for the period from April 8, 2015 to the present. See 38 C.F.R. § 4.126. The claim for a higher rating is therefore denied. REASONS FOR REMAND The Veteran has been unemployed since suffering a work- related injury in 2005. Nevertheless, he also asserts that his PTSD prevents him from working. VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with her education and occupational experience. 38 C.F.R. § 4.16. The claim for TDIU expressly raised by the Veteran is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating as part of the claim for increase for the PTSD disability. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As the RO has not yet addressed this portion of the claim in the first instance, the claim for a TDIU is remanded. See 38 U.S.C. § 7104 (a). The Veteran should be requested to provide employment and educational information in a VA Form 21-8940. Any development necessary due to the Veteran's answers on that form should be undertaken. Thereafter, the RO should adjudicate whether the Veteran is entitled to TDIU. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his increased rating for anxiety claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Ask the Veteran to complete a VA Form 21-8940 and submit it to VA. Additional development deemed necessary to adjudicate the TDIU claim should then be undertaken. 3. After undertaking any development deemed warranted by the AOJ, the claim for a TDIU should be adjudicated. If the benefit sought is denied, the Veteran and his attorney should be furnished a supplemental statement of the case and the case should be returned to the Board. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED