Citation Nr: 21041940 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 15-37 566 DATE: July 10, 2021 ORDER A rating of 50 percent, but no more, for posttraumatic stress disorder (PTSD), prior to January 11, 2019, is granted, subject to the payment of monetary benefits. A rating of 70 percent, but no more, for PTSD since January 11, 2019, is granted, subject to the payment of monetary benefits. REMANDED Entitlement to payment of benefits pursuant to 38 U.S.C. § 1151 for chemical brain injury and tardive dyskinesia Entitlement to a total disability rating due to individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran had active duty from November 1973 to December 1974. 2. Prior to January 11, 2019, PTSD was productive of anxiety, depressed mood, impairment of judgment and insight, self-isolation and limited social relationships, loss of short-term memory, and deficiencies of grooming and hygiene. The Veteran did not have panic attacks or obsessional rituals, display inappropriate behavior, or lack the ability to act independently, and did not have impairment of thought processes or communication. 3. Since January 11, 2019, PTSD has been manifested by anxiety, depressed mood, impairment of judgment and insight, mild memory loss, panic attacks more than once per week, obsessional rituals, chronic sleep impairment, and reclusive behavior with difficulty controlling anger, without deficiencies in communication or thought processes or suicidal and/or homicidal ideation. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, but no more, for PTSD prior to January 11, 2019, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411 (2020). 2. The criteria for a rating of 70 percent, but no more, for PTSD since January 11, 2019, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In March 2021, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. Further, he has sought a remedy for the chemical brain injury manifesting in tardive dyskinesia under the Federal Tort Claims Act and his correspondence in that regard has been addressed by the VA General Counsel. Tort claims are outside the purview of the Board and will not be addressed. Increased Rating for PTSD Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders ("General Rating Formula"). Under the General Rating Formula, a 30 percent rating is warranted for 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 occurring weekly or less often, chronic sleep impairment, and mild memory loss (i.e. forgetting names, directions, or recent events). A 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, due to such symptoms as: suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control (such as an unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), and an inability to establish and maintain effective relationships. A 100 percent rating is warranted under the General Rating Formula 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Prior to January 11, 2019 Turning to the evidence, in a May 2012 private psychological evaluation, the Veteran reported experiencing anxiety and anger. The psychologist noted no hallucinations, delusions, or illusions, and no suicidal or homicidal ideation. Judgment, insight, and concentration were found to be adequate. Speech was normal in rate and tone. Thoughts were logical and goal-directed, but the psychologist noted deficits of short-term memory. The Veteran denied symptoms of anxiety and depression for the most part, but the psychologist indicated that the Veteran may be expressing these symptoms through concrete physical complaints. Private therapy records dated in 2013 show increased anxiety with depression also noted in 2014. In 2016, he was found to be very anxious, depressed, and self-isolating. At a September 2014 VA examination, the Veteran reported spends a lot of time driving forest roads and performs his own household chores and prepares his own meals. He had minimal social contacts and had two friends, stating that he enjoyed shooting with one. The clinician found the Veteran to be oriented to person, place, time, and situation with fair grooming and hygiene. Speech was mildly pressured, mood was anxious, and affect was congruent. Thought coherent, logical, and goal-directed. The Veteran denied suicidal and homicidal ideations. Insight and judgment were both poor. The examiner noted that the Veteran refused psychological testing, exhibiting increased anxiety, and then terminating the interview. Considering all evidence relevant to the period, a 50 percent rating, but no more, is warranted prior to January 11, 2019. In this regard, during this period, the Veteran was oriented to time, place, and person and had logical and goal-directed thought processes; however, he exhibited impairment of judgment and insight, had deficits of short-term memory, had minimal social contacts, and presented with only fair hygiene and grooming. A rating in excess of 50 percent requires impairment in most areas of functioning including social relationships with manifestations such as suicidal or homicidal ideation, obsessive rituals, and near continuous panic or depression that affect his ability to act independently or appropriately. While the Veteran had limited had deficits of grooming and hygiene, judgment and insight, his symptoms did not include panic attacks or symptoms that prevented him from behaving appropriately and independently. Moreover, he maintained friendships with two people and interacted socially with them. Therefore, a rating in excess of 50 percent is not warranted prior to January 11, 2019. Since January 11, 2019 In a January 2019 VA examination, the clinician found that the Veteran had occupational and social impairment with deficiencies in most areas, including school, family relations, judgment, thinking, and/or mood. Symptoms noted included suspiciousness, panic attacks more than once per week, near-continuous panic/depression, chronic sleep impairment, mild memory loss, difficulty understanding complex commands, impaired judgment and abstract thinking, disturbances of motivation and mood, difficulty establishing work and family relationships, obsessional rituals that interfered with routine activities, impaired impulse control, and intermittent inability to perform activities of daily living. The clinician's behavioral observations found the Veteran to be alert and cooperative with poor hygiene, unremarkable speech, depressed-anxious mood with psychomotor agitation, and congruent affect. There was no psychotic process or thought disturbance, and no suicidal and homicidal ideations. The clinician noted social anxiety, isolationist and reclusive behavior, and difficult managing anger. The Veteran was not taking medication for his symptoms because of his previous negative experience with Reglan. Overall, the clinician determined that since the last PTSD examination by VA, the Veteran's symptoms had worsened. The record does not reflect treatment for PTSD during this period. Therefore, based on the above, a70 percent rating, but no more, is warranted for PTSD since January 11, 2019. The medical evidence overall demonstrates occupational and social impairment with deficiencies in most areas throughout the appeal period, but not total occupational and social impairment. The evidence shows that the Veteran's psychiatric disorder during this period is manifested by anxiety, depressed mood, impairment of judgment and insight, mild memory loss, panic attacks more than once per week, obsessional rituals, and chronic sleep impairment without deficiencies in communication or thought processes or suicidal and/or homicidal ideation. In addition, he exhibited reclusive behavior and difficult controlling anger. Nonetheless, such symptomatology does not more closely approximate a rating in excess of 70 percent rating. For example, at no point did the evidence support a finding of persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name; nor was evidence of a similar type and degree of such symptoms found. Rather, while the Veteran had reclusive tendencies, he remained capable of communicating effectively at the January 2019 VA examination, as well as at his March 2021 hearing. Thus, his symptoms have not rendered him totally impaired. The Board has also considered the Veteran's lay statements that his disability is worse than contemplated by the above assigned ratings. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals for a rating in excess of 30 percent prior to January 11, 2019, and in excess of 70 percent since that date, are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Regarding the claim for benefits pursuant to 38 U.S.C. § 1151, the Veteran asserted that he developed tardive dyskinesia due to treatment with Reglan by VA providers and that such treatment was negligent. At the March 2021 hearing, he testified to treatment for tardive dyskinesia by private neurologists in New Mexico in 2017. While medical evidence was received from 2017 forward, records related to the that treatment are not on file. Therefore, he should be afforded an opportunity to submit or authorize VA to obtain such records. In addition, in testimony and additional lay statements, the Veteran asserted that a review of his VA treatment records by Dr. ES, as discussed in a January 2010 letter from Dr. GM, is missing from his claims file and VA treatment notes. It is not clear from Dr. GM's letter whether Dr. ES prepared a separate report for the file or whether Dr. ES's findings were solely summarized by Dr. GM in his letter. However, if a separate report by Dr. ES reflecting his review of the Veteran's VA file exists, such should be located and added to the claims file. Further, a VA opinion has not been obtained as to the development of a chronic, additional disability due to the Veteran's treatment with Reglan. For these reasons, the claim for benefits pursuant to 38 U.S.C. § 1151 is remanded. Next, while a January 2019 rating decision denied a TDIU and was separately appealed, entitlement to a TDIU was raised as part of the appeal for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the appeal period for the TDIU extends back to the Veteran's claim for an increased rating for PTSD filed in July 2011. However, while the grant above of a 70 percent rating for PTSD, effective January 11, 2019, met the schedular criteria for a TDIU specifically, a single disability rated at 60 percent or more or a disability rated at 40 percent with a combined disability rating of at least 70 percent, the Veteran did not meet the schedular criteria for a TDIU prior to January 11, 2019. Thus, a remand is needed so that whether a TDIU is warranted on an extra-schedular basis may be considered by the AOJ in the first instance. The matters are REMANDED for the following actions: 1. Undertake appropriate development to associate any outstanding, relevant treatment notes with the claims file, including but not limited to: private neurological treatment in 2017 as identified by the Veteran at his March 2021 hearing; a report of a review of VA treatment conducted by Dr. ES in 2009 or January 2010. 2. Obtain a medical opinion as to whether the Veteran developed a chronic, additional disability due to use of the prescription drug Reglan. The clinician is asked to review the claims file, to include a copy of this remand, and address the following: Is it at least as likely as not (50 percent or greater probability) that the dose and/or duration of Reglan prescribed to the Veteran was the result of negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? It would be of assistance to the Board if the clinician could describe the standard of care for prescribing Reglan at the time it was initially prescribed, as well as any changes in the standard of care during the period of treatment, and discuss whether that standard of care was met. A complete rationale for all stated opinions must be provided. If an opinion cannot be rendered without a clinical examination of the Veteran, such examination should be scheduled. Once all additional evidence has been obtained, readjudicate the claims. If the schedular criteria for a TDIU are not met prior to January 11, 2019, determine whether referral of the TDIU claim to the Director, Compensation Service, for extra-schedular consideration is warranted. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. M. Schaefer, 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.