Citation Nr: 21041310 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-38 412 DATE: July 8, 2021 ORDER An initial rating of 70 percent, but no higher, for the service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), (hereinafter psychiatric disability) is granted. FINDING OF FACT For the entire appeal period, the Veteran's psychiatric disability is manifested by psychiatric symptomatology more nearly approximating occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood; but not total occupational and social impairment. CONCLUSION OF LAW The criteria for the assignment of an increased rating of 70 percent, but no higher, for the service-connected psychiatric disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2000 to October 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for PTSD (also claimed as insomnia and short-term memory loss), and assigned an initial 30 percent disability rating, effective from April 22, 2015. The Veteran's notice of disagreement was received in February 2016. The RO issued a statement of the case in June 2016. The Veteran's VA Form 9, substantive appeal to the Board, was received in August 2016. In February 2019 the Board remanded the case to the RO for further development and adjudicative action. During the pendency of the appeal, the RO issued a rating decision in July 2020 granting an increased rating for the service-connected PTSD with major depressive disorder (MDD) to 50 percent, effective from September 25, 2018. The Veteran has never asserted being unemployable due to his service-connected psychiatric disability throughout the appeal period. In fact, as noted in the September 2018 VA examination, the Veteran has been employed full-time throughout the appeal period with the United States Post Office. Thus, a claim for a total disability rating based on individual unemployability (TDIU) has not been reasonably raised by the record, and the Board does not have jurisdiction over such a claim at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life and employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Throughout the appeal period, the Veteran's psychiatric disability has been assigned a 30 percent evaluation as of April 22, 2015, the date of service connection, and a 50 percent evaluation as of September 25, 2018, pursuant to Diagnostic Code 9411, which provides that such disability is rated under the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 30 percent rating is assigned where there is 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). A 50 percent rating is assigned where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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; 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. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). The medical evidence of record consists of private medical evidence dated in April 2015, VA examinations dated in July 2015 and September 2018, and written lay statements from the Veteran and his wife. This evidence, the most pertinent of which is reviewed below, shows that the Veteran's overall disability picture is manifested by symptomatology that more nearly approximates occupational and social impairment with deficiencies in most areas to include work, social relations, and mood, warranting a 70 percent disability rating throughout the entire appeal period. Turning to the evidence of record, the record includes two PTSD examinations during the appeal period. For the latter examination, the examiner made multiple diagnoses from which the symptoms were secondary to PTSD. In such cases, when it is not possible to separate the effects of service-connected and non-service-connected disabilities, such effects should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Accordingly, all symptoms will be rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, PTSD. According to private treatment records, the Veteran had a medication review with his primary care physician in April 2015 regarding anxiety and depression. Due to negative thoughts, the Veteran had tapered off his medication in the last 3 months and wanted to restart medications for anxiety due to such symptoms as a racing mind, trouble relating to customers at work, and a short temper. The doctor found the Veteran's anxiety to be part of the symptom complex of PTSD and MDD. In an April 2015 letter from the Veteran he describes the impact of his psychological disorder to include: an overall lack of motivation ranging from personal hygiene, such as showering, to any and all social interaction including his own family and personal relationships; efforts to avoid all contact with coworkers; difficulty interacting with customers at work; rapid unclear speech; inability to focus at work; panic attacks causing shortness of breath; short-term memory loss; difficulty processing or remembering instructions from his employer; an overall disturbance in mood for which he "want[s] to crawl in a hole and be by myself," "thoughts of death come into play," and telling his wife he wanted to die. At a July 2015 VA psychiatric examination, the Veteran was diagnosed with PTSD. As to his social functioning, the Veteran reported getting along with his family, that he divorced in 2002 during the military and currently lived with his wife of 4 years and his two children, ages 3 and 2, with whom he gets along with. He further reported socializing occasionally with friends from work, but no mention of hobbies. As to his work life, the Veteran has been working for the Unites States Postal Service (USPS) for 10 years, enjoys his job, has good performance evaluations, and generally performs well at his job, but occasionally calls in sick due to exhaustion and sleep deprivation. The Veteran reported feeling anxious when working the front desk with customers. As to his mental health history, he was diagnosed with anxiety and prescribed medication in May 2004, and medication for depression in April 2015. The examiner found that the Veteran's psychiatric disability was manifested by depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events. The examiner concluded that the Veteran's psychiatric disability 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 normal. In his February 2016 notice of disagreement statement, the Veteran states, "Depression/suicidal thoughts they come and go but it's there." He explains that due to the July 2015 VA examiner's interview preface about taking necessary actions with regard to suicide, he was too scared to share his thoughts of suicide during the examination. The Veteran describes the "profound negative" impact of his psychiatric disability in a March 2016 statement to the Board. He describes not wanting to get out of bed or take a shower, "what's the point," along with nightmares that exhaust him to the point of wanting to call in sick to work in addition to short term memory loss that effect his work life. In his August 2016 formal appeal to the Board (VA Form-9), the Veteran explains that even after restarting his medications, his symptoms have not improved but gotten worse. He describes the following symptoms: speech has become unclear and rapid; severe panic attacks in both waking and while at work that prevent him from thinking clearly 2-3 times per day; "there are times I cannot understand some complex command whether it be a boss or coworker," for which he must ask his superior to help him again to understand the instruction or "it simply doesn't get done"; worsening memory loss in which he fails to recall such things as what his wife has just told him, what he ate that day, what he came to purchase from a store, or where he parked his car, resulting in tasks going undone at work or home; impaired judgement shown by excessive drinking which result in hangovers at work; inappropriate behavior at work or home displayed by inappropriate swearing or yelling; impairment in abstract thinking, "I can't sort, or categorize priorities so nothing gets done"; no desire to do anything including showering or leaving the house on the weekends, "I just have zero motivation at home or work, a feeling of hopeless[ness]"; feeling disconnected at work; procrastinating on projects at work; trouble keeping friends or family around; and, suicidal thoughts which come and go for which he does not want to worry his family but, "blurted out to my wife that I don't want to live and that I am suicidal." He again reiterated that he did not express his suicidal thoughts to the July 2015 VA examiner due to her pre-interview preface that if he was feeling suicidal, he would not be able to leave, and closed the letter by stating, "When you can't function, sleep, think, abuse alcohol, withdraw from work and family, to a point of feeling they wouldn't miss me or care if I took my life tells me my rating is way off from what the examiner says." The Veteran describes a worsening of symptoms in his December 2017 statement to the Board. Due to his constant nightmares or tossing and turning, he and his wife no longer share a marital bed. He communicates how his psychiatric disability has taken "a major toll on my family, my kids, and my friendships!" and describes being very tired, irritable with anyone he comes across, drinking more to cope, and fears being unable to hold down a job in the future. In an August 2018 progress note regarding medication management for anxiety and depression, Dr. A noted the following: Patient has underlying PTSD from his deployment in Iraq. He continues to have anxiety and depression he feels his anxiety is worse. He feels overwhelmed getting into work in the morning. He also struggles with sleep he states that he is able to fall asleep however when he gets up he has trouble falling asleep is always thinking about work or if he will miss his alarm. Having [suicidal ideation], recent panic attacks. Patient is overwhelmed with work, family life and his kids. He feels that it is a cycle he needs to break. He feels if he is not sleeping enough, he is feeling more anxious. In a September 2018 statement to the Board the Veteran reiterates his worsening symptoms which continue to include suicidal ideation, disturbances in motivation, excessive irritability, illogical speech, obsessive rituals such as checking the locks on the doors repeatedly, constant anxiety around his children and wife, strained relationships, difficulty at work, and neglect of personal appearance and hygiene. The Veteran's wife endorses the Veteran's symptomology in her September 2018 letter such as his lack of interest in relationships with family or friends, avoidance of social interaction, illogical speech, loss of interest in hobbies, avoidance of crowds as they will usually cause panic attacks, easily irritable or upset including an incident in July 2018, where "he got upset, went upstairs and packed a bag saying he wanted a divorce and was going to move out. Our boys heard all of this and became really upset." She further asserts that the Veteran avoids playing with their children or spending one-on-one time with them, and is unable to function independently relying on his wife to "make all calls regarding appointments, discussions about bills, etc. If he needs something from the store I will either go or all of us will have to go." At a September 2018 VA psychiatric examination, the Veteran was diagnosed with PTSD and MDD. As to his social functioning, the Veteran reported "good" relationships with both parents, though with whom he maintains minimal contact such as a call every month or month and half and distant and strained relationships with his two brothers. He further reported being married to his wife of seven years with two sons 6 and 3 with whom he describes having good/positive relationships (with the exception of becoming easily irritated with them). His marital relationship was described as "not real good" due to his increasing detachment and more frequent arguing between them. The Veteran added that he becomes irritated easily and has difficulty understanding his wife's feelings. Current social relationships were noted to include few to no friends, just a neighbor who "checks in on [him] once in a while." The Veteran attributes problems in his current social relationships to his mental health symptoms, namely a "depressed state." In this regard, the Veteran explained that he lacks motivation to be social, just "sit[ting] around," goes nowhere on weekends with his wife and sons, has no hobbies, and goes straight home after work. As to his work life, the Veteran has been employed by USPS for the past 13 years (sorting mail and packages in the back of the office). Occupational problems related to mental health symptoms were said to include difficulty with motivation/drive to perform (to include difficulty following through with assigned tasks) causing performance issues; and irritability with others causing difficulty in getting along with coworkers and supervisors. As to his mental health history, the examiner refers to Dr. A's August 2018 progress note and the problems list to include MDD, PTSD, Generalized Anxiety Disorder, and insomnia with current medications which do not include any psychotropic medication. Aside from medication management, the Veteran has reportedly been attempting to handle his mental health problems on his own through church and talking to congregation members, however, stated that he experiences significant anxiety in talking to others due to difficulty expressing or communicating his thoughts. The examiner found that the Veteran's psychiatric disability was manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships and concluded that the Veteran's psychiatric disability resulted in occupational and social impairment with reduced reliability. In an October 2018 letter to the Board the Veteran reiterates his worsening symptoms. He describes being totally withdrawn a work, avoiding coworkers, difficulty communicating, and a further breakdown in his relationship with his wife with whom he does not speak to avoid arguments. As to work, he explains getting into fights with his supervisor "over literally nothing" and failing to complete tasks which leads to more arguments. As to his family he states, "[I] do not engage with the kids, [I] pretty much sit on the couch and ignore them when asked to play or help with homework." As to his mood, he describes a constant negative mind set, "I feel like everything is bad nothing good to come of it. I don't care about anything. From time to time thoughts come into my mind that maybe I'm better off not being alive. Told wife earlier this year that I just want to die and that I'm tired of life...I feel a constant sadness that includes having fears of dying and losing my family. At times I can barely function." As to his hygiene, he states, "when I get up I will not shower or brush my teeth. I will just get up exhausted and get dressed, wearing the same clothes all week," for which his coworkers have noticed and offered emotional assistance. Here, the Veteran has expressed suicidal ideation consistently throughout the appeal period, to include his doctors, spouse, VA examiner, and to the Board. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (the language of the general rating formula "indicates that the presence of suicidal ideation alone... may cause occupational and social impairment with deficiencies in most areas."). Additionally, throughout the appeal period the Veteran has withdrawn from his wife and family; isolated himself from nearly all interactions at work (going from customer contact to sorting mail in the back office); has disrupted speech and an inability to form clear thoughts; lives in a near constant state of depression; outside of work he does not leave his home; neglects his personal hygiene; does not function independently, instead relying on his wife to pay bills or take care of household needs; and uses alcohol as a coping mechanism. Overall, the Veteran's symptoms remained consistent and did not show sustained improvement throughout the appeal period. Considering the total severity of the Veteran's disability at all times, and not just the clinical impressions at the time of the select few VA examinations, the overall psychiatric disability picture is manifested by symptoms of the type, frequency, and severity more nearly approximating the criteria for the assignment of a 70 percent rating. 38 C.F.R. § 4.126. Accordingly, by resolving all doubt in his favor, a 70 percent evaluation, but no higher, for the Veteran's psychiatric disability is warranted throughout the appeal period based on the evidence of record at this time. A rating in excess of 70 percent for the service-connected psychiatric disability is not warranted in this case. The Veteran was shown to be able to work throughout the appeal period and has remained married. He also maintains some contact with his parents and siblings. The Veteran did not suffer from hallucinations, delusions, a lack of insight into the severity of his disability, or memory loss as to his own identity or occupation. Moreover, the Veteran was not in danger of hurting others. Thus, although the severity of the Veteran's disability is significant and results in deficiencies in most areas of his life, the severity does not rise to the overall level of total occupational impairmenthe does remain employment throughout the appeal periodnor total social impairment. As the Veteran's psychiatric disability does not result in total occupational and social impairment, a rating in excess of 70 percent is not warranted at any time during the appeal period. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.