Citation Nr: 21040330 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-17 228 DATE: July 3, 2021 ORDER Entitlement to a rating of 70 percent, but not higher, for posttraumatic stress disorder (PTSD) effective February 20, 2015, is granted. REMANDED Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT Effective February 20, 2015, the severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximate occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to a rating of 70 percent, but not higher, for PTSD effective February 20, 2015, 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 from July 1987 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran testified before the Board at an April 2021 virtual hearing; a transcript of the hearing is associated with the claims file. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in the June 2015 claim form submitted by the Veteran. The AOJ associated the Veteran's service records and VAMC treatment records with the claims file. The Veteran submitted additional evidence, including VAMC records and employment records, following the April 2021 Board hearing and waived AOJ consideration of those records at the hearing. No other relevant records have been identified and are outstanding. VA provided an appropriate and adequate examination that included the necessary findings to apply the Rating Schedule and identify the current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating The Veteran contends that a rating in excess of 30 percent is warranted for his service-connected PTSD. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (Code), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. "Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings." Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citation omitted). VA accordingly concentrates on the evidence that establishes the state of the veteran's disability in the period one year before the veteran files his claim through the date VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, cause the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). After considering the evidence, and granting the Veteran the benefit of the reasonable doubt, the Board finds that the Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and caused the level of impairment that more closely approximated a 70 percent rating. The Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. A 10 percent rating is assigned with mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. As an initial matter, the Board will address the effective date assigned for the Veteran's increased rating claim. The Board has assigned an effective date of February 20, 2015, because this is the earliest specific date on which his symptoms are documented to have increased in the one-year period prior to his claim. In an April 2015 VA medical center (VAMC) primary care record, the Veteran reported that he had "been off work. . . since 2/20/15 [because] of his PTSD." A week later, an April 2015 VAMC mental health record noted that the Veteran "experienced an increase in symptoms in December [2014] and has been more anxious since that time." The Board has not assigned an effective date in December 2014, however, because it is unclear when (and to what extent) his symptoms increased at that time. The Veteran reported February 20, 2015, as the date that he stopped working due to his PTSD, and his employment Leave Year 2015 Absence Analysis verified that he took two hours of scheduled leave on February 20, followed by weeks of unscheduled leave. Therefore, the Board finds that February 20, 2015, is the appropriate effective date for the increase in the Veteran's PTSD evaluation. 38 C.F.R. § 3.400(o)(2). As to the rating assigned for the Veteran's PTSD, VAMC records, a July 2015 VA examination, and the Veteran's lay statements show that his PTSD was manifested by symptoms associated with a 70 percent rating (suicidal ideation; speech intermittently illogical; near-continuous panic or depression affecting the ability to function appropriately and effectively; impaired impulse control such as unprovoked irritability with periods of violence; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships), and symptoms associated with a 100 percent rating (disorientation to time or place). Additionally, his symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; and mild memory loss are associated with a 50 percent rating or lower. He also had symptoms that are not listed with a specific rating, such as hypervigilance, agoraphobia, and nightmares. The July 2015 VA examination listed additional symptoms such as recurrent, involuntary, and intrusive distressing memories; marked physiological reactions to internal or external cues that resemble an aspect of the traumatic event; avoidance of external reminders that arouse distressing memories, thoughts, or feelings; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; and exaggerated startle response. The VA examination did not include additional information about these symptoms, however. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Veteran reported that his symptoms would increase in severity in the winter months around January (September 2015 VAMC psychiatry, February 2016 VAMC mental health, February 2017 VAMC mental health, September 2017 VAMC mental health, January 2018 VAMC mental health, February 2020 mental health records). A January 2016 VAMC mental health record noted "doesn't sleep well" because "he is hypervigilant and a light sleeper." At the April 2021 Board hearing the Veteran testified that "whenever I do fall asleep, it's usually after I check every window and every door about 20 times. I just constantly think somebody's trying to break in my house." VAMC psychiatry records in April and September 2015 as well as the July 2015 VA examination indicated that the Veteran experienced agoraphobia. Agoraphobia was not referenced in treatment records after 2015, although the Veteran reported greater "stress and anxiety" at work in an April 2016 VAMC record because he was no longer working by himself "but now . . . has to work around other people most of the day." An April 2015 VAMC psychiatry record noted that the Veteran "Has a bad nightmare about once per week. August 2015, June 2016, February 2018, July 2019, and August 2020 VAMC mental health treatment plans noted nightmares but not their severity, frequency, or duration. An August 2016 VAMC mental health record documented the Veteran's report of "an increase in intrusive memories and nightmares in the weeks after [a reunion with his military unit] but that it seems to be getting better now." The Veteran denied nightmares in an April 2018 VAMC mental health medication management record, although he reported "some occasional nightmares" a year later in an April 2019 VAMC mental health record. The Board notes that the Veteran's hypervigilance is similar to obsessional rituals which interfere with routine activities; his agoraphobia is similar to near-continuous panic or difficulty adapting to stressful circumstances; and his nightmares are similar to chronic sleep impairment. The majority of those symptoms are contemplated by a 70 percent rating. The Board also recognizes that the Veteran referenced suicidal ideation in an April 2015 VAMC primary care record, which is similar to the persistent danger of self-harm contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating, however. In the April 2015 VAMC primary care record, the Veteran reported that he had thoughts about death or suicide "but no intent or plan. For 3-4 months. He stated that he would never act on these thoughts." Beginning May 2015, the Veteran regularly denied thoughts, intent, or a plan involving self-harm in VAMC treatment records. The Veteran did testify at the April 2021 Board hearing that suicidal ideation "crosses my mind periodically. Sometimes I get the feeling where I'm no good to my family. They'd be better off, you know, not being here. They could live better off with my health or my life insurance. Whether I could actually follow through, I don't know." The Board finds this does not rise to the level of a 100 percent rating, however, because he consistently denied suicidal or homicidal intent in VAMC treatment records from May 2015 to September 2020. Overall, the Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. At the April 2021 Board hearing, the Veteran testified that "Periodically, I'll get so aggravated and agitated, my wife says I'm speaking in tongue, because I'll start yelling and--yeah, I don't even know what I'm saying sometimes. It's like something is not leaving from my brain to my mouth . . . It's not often, but it happens, you know." Regarding panic and depression, the April 2015 VAMC psychiatry record noted panic when leaving the house; a May 2015 VAMC psychiatry record reported that the Veteran was working again, though he "continue[d] to have a lot of anxiety when leaving the house." An August 2015 VAMC mental health record indicated that the Veteran was "still having frequent panic attacks and preferring to stay in his room." In a February 2016 VAMC mental health record, the Veteran "stated that he has had several panic attacks per day and also experiencing nausea." Reports of panic attacks trailed off in mental health treatment records after February 2016 until a January 2020 VAMC mental health record, when the Veteran indicated "he is back to having problems leaving the house and experiencing anxiety when in most social situations." February 2018, July 2019, and August 2020 mental health treatment plans referenced panic attacks, but the severity, frequency, and duration were not described. The Veteran's level of depression varied over the appeal period. He reported depressive symptoms in a March 2015 VAMC mental health initial evaluation. In an April 2015 VAMC psychiatry record he reported a "down" mood during his agoraphobic episodes but denied "feel[ing] severely depressed." The July 2015 VA examination noted depressed mood as one of the Veteran's symptoms, but in a January 2016 VAMC mental health record the Veteran denied depression. In a March 2016 VAMC mental health record, he "reported some increase in depression"; in May 2016 and November 2016 VAMC mental health records the Veteran reported an increase in depression during the prior few weeks. A January 2017 VAMC mental health record noted the Veteran's report of "some depression and anxiety," but he also felt "that this winter has been better than previous years." The Veteran denied depression in an April 2018 VAMC mental health medication management record. In August 2019, the Veteran "reported some increase in anxiety and depression during [the last several months]." A February 2020 VAMC mental health record indicated that the Veteran "reported increase in depression over the past few weeks." A November 2020 VAMC primary care depression screening was negative. At the April 2021 Board hearing, the Veteran estimated that he experienced "really bad episodes" of depression "10 to 12 weeks a year, maybe." The Veteran consistently reported irritability, particularly associated with work (April 2015 VAMC psychiatry record, November 2018 VAMC mental health medication management record, and April 2021 Board hearing, as well as November 2015, May 2016, September 2017, April 2018 VAMC, and August 2020 mental health records). He testified at the April 2021 Board hearing that he has "problem[s] with getting irritable in a stressful situation and lashing out in anger," stating "Yes, yeah, quite often. Mainly at work, also at home, but mainly at work." The Veteran further testified at the Board hearing that he has been "walked out" of his place of employment "at least twice that [he] can remember" within "the last six to seven years." The Veteran also reported isolating himself from others. In a February 2016 mental health record the Veteran "stated that he has been isolating and unable to go to work." In April 2016 and July 2017 VAMC mental health records the Veteran reported a desire to isolate in his room; a September 2017 VAMC mental health record noted that the Veteran "has found himself starting to isolate in his room again." In a November 2018 VAMC mental health record the Veteran "stated that he is finding himself isolating more again." At the April 2021 Board hearing, the Veteran described himself as "a people person" but also noted "I don't have time for friends. My sisters live probably 30 to 45 minutes away. I haven't seen them in probably a year and a half. I don't do family functions well, outside of my kids and my wife. I pretty much stay right here at the house, you know, or be at work." Although the Veteran testified at the April 2021 Board hearing that he experienced a symptom contemplated by a 100 percent rating (disorientation to time or place while isolating himself in his room) the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, while the Veteran has deficiencies in most areas, including work and social relations, these do not rise to the level of total occupational and social impairment. The Veteran has maintained employment throughout the appeal period utilizing the Family and Medical Leave Act as well as the Wounded Warrior Act. Additionally, the Veteran has cultivated a stable relationship with his children and spouse (July 2015 VA examination, September 2015 VAMC mental health record, April 2021 Board hearing). Thus, the Board finds that a 70 percent rating, but not higher, is appropriate for the Veteran's service-connected PTSD. In short, the preponderance of the evidence supports a 70 percent rating, but not higher, for the Veteran's PTSD based on the severity, frequency, and duration of his symptoms. Additionally, the preponderance of the evidence supports an effective date of February 20, 2015, but not earlier. The appeal is accordingly granted. REASONS FOR REMAND Entitlement to a TDIU is an additional element of all claims for a higher rating in which the Veteran or the record raises the issue of such entitlement. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran raised the issue of entitlement to a TDIU when he filed an April 2021 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability, hereinafter "TDIU application") in which he reported that his PTSD prevented him from securing or following any substantially gainful occupation. In the TDIU application the Veteran stated "I am currently working, but it's marginal employment due to disability. I've maintained employment only because I've utilized the accomodations [sic] afforded to me by [my employer]." Because the Veteran has alleged that he participates in marginal employment that includes accommodations, additional information is needed from the Veteran and his employer. Remand is therefore required to obtain this information. The matter is REMANDED for the following action: 1. Contact the Veteran and request additional information regarding his employment, including accommodations he receives. 2. Send the Veteran's employer a VA Form 21-4192. 3. Then, adjudicate the claim. If the benefit sought remains denied, issue a supplemental statement of the case and return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.