Citation Nr: 21041950 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-29 296 DATE: July 10, 2021 ORDER An increased rating of 70 percent for posttraumatic stress disorder (PTSD) effective from the earlier effective date of March 23, 2014 is granted. REMANDED Entitlement to a rating in excess of 70 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT From March 23, 2014 and prior to March 23, 2015 the symptoms of the Veteran's PTSD are reasonably shown to produce occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an effective date of March 23, 2014 for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from December 1969 to August 1971 with service in the Republic of Vietnam. He was awarded the Combat Infantryman's Badge. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision, which granted an increase to 70 percent for PTSD, effective March 23, 2015 (the date the non-initial claim for increase was received). In February 2020 a video conference hearing was held before the undersigned, a transcript is in the record. Increased rating for PTSD (from the earlier effective date of) March 23, 2014 Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. PTSD is rated under Code 9411 and the General Rating Formula for Mental Disorders, which provides for a 100 percent rating 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 or place; memory loss for names of close relatives, own occupation, or own name. 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 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. A 50 percent rating is warranted if 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. When adjudicating psychiatric claims, the Board has an obligation under Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) to conduct a three-part "holistic" analysis. The first step of the analysis is to assess the "severity, frequency, and duration of the signs and symptoms" of the Veteran's condition. The second step is to quantify "the level of occupational and social impairment caused by those signs and symptoms." The third step is to assign an "evaluation that most closely approximates that level of occupational and social impairment." The list of symptoms in the general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to 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 (2002), Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The claim for increase in rating for already service-connected PTSD was received on March 23, 2015. Accordingly, the period for consideration begins one-year prior on March 23, 2014. On June 2014 psychiatry treatment record, the Veteran denied suicidal and homicidal ideation. He reported that he never felt suicidal. It was noted that the Veteran had completed 25 individual therapy sessions, without cancellation or no show for sessions. An October 2014 psychiatry treatment record notes the Veteran worked part time as a meat cutter. It was noted that he had recently completed a course of individual psychotherapy. He reported symptoms of PTSD including nightmares, flashbacks, severe anxiety in crowds, hypervigilance, insomnia. On December 2014 PTSD DBQ, the diagnoses were moderate and chronic PTSD, depressive disorder, and cannabis use disorder. The examiner noted the Veteran's primary problem appeared to be PTSD, with his depressive disorder appearing to be secondary to PTSD and/or cannabis use disorder. The examiner assessed 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. Symptoms were noted as depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. On examination the examiner described the Veteran as well-groomed with organized, logical, and coherent thought process. The Veteran denied experiencing auditory hallucinations, delusions, or paranoia. He described seeing "something flash by" three to four times per week, but there was no evidence of a psychotic process. He reported occasional passive suicidal ideation without intent or plan. He denied ever having homicidal ideation. A February 2015 psychiatry treatment record notes the Veteran worked part time as a meat cutter, and lived with his wife, daughter, son-in-law, and granddaughter. The Veteran reported symptoms of PTSD to include nightmares, flashbacks, severe anxiety with crowds, hypervigilance, and insomnia. In May 2015 correspondence, the Veteran's VA psychiatrist (treating the Veteran since October 2013) described the Veteran's symptoms as that of nightmares, flashbacks, intrusive memories, avoidance, feeling detached, insomnia, anger outbursts, poor concentration, hypervigilance, exaggerated startle. The provider noted that despite treatment, the Veteran continued to be hampered by many severe ongoing symptoms of PTSD. The provider noted the Veteran was severely disabled by his condition. As noted above, the AOJ initially granted the higher rating of 70 percent effective the date of receipt of the Veteran's claim for an increase. However, for non-initial increase rating claims, the period on appeal extends to one year prior to the date of the claim. In this case, a review of the record shows the Veteran's degree of impairment more closely approximated that of a 70 percent rating prior to the assigned effective date of March 23, 2015. 38 C.F.R. § 3.400 (o)(2). Accordingly, an earlier effective date of March 23, 2014 for the award of 70 percent is warranted. The matter of entitlement to a rating in excess of 70 percent (to include during this expanded period from March 23, 2014 to March 25, 2015) is addressed below on remand. REASONS FOR REMAND 2. Entitlement to a rating in excess of 70 percent for PTSD At the February 2020 video conference, the Veteran testified that his PTSD was worsening. See February 2020 Video Conference Hearing pg. 11. He also testified that he has continued to receive treatment from a VA clinic since January 2018. Id. Pg. 17. However, a review of the record indicates that the Veteran's VA clinic records are only of file until January 2018. VA treatment records are considered constructively of the record and must be sought. 38 C.F.R. § 3.159 (c)(2). Accordingly, given the allegations of worsening, and outstanding VA treatment records (which have yet to be considered by a medical professional), a remand to secure updated records and a new examination to ascertain the current level of impairment is necessary. 3. Entitlement to TDIU The claim of TDIU has been raised by the record. See February 2020 Video Conference Hearing pg. 17. Currently, it is unclear from the record when the Veteran's employment ended. A March 2015 VA Form 21-8940 indicates the Veteran became too disabled to work in April 2014. However, a review of the record indicates that the Veteran was working part-time as late as February 2015. Whether such employment was considered marginal or protected is to be considered. However, an accurate description of the Veteran's employment history is necessary for adjudication of the claim of TDIU. Accordingly, an updated VA Form 21-8940 is necessary to address the Veteran's employment history. Lastly, the Board notes that the question of TDIU in this case is inextricably intertwined with the question of the degree of impairment caused by the Veteran's service-connected PTSD. The Veteran's service-connected PTSD is rated 70 percent (as addressed above from the earlier effective date of March 23, 2014) meets the schedular criteria for a claim of TDIU. See 38 C.F.R. § 4.16. Accordingly, the degree of impairment caused by the Veteran's PTSD directly impacts the question of entitlement to TDIU. Accordingly, the claim of TDIU must be addressed once all treatment associated with the Veteran's PTSD are fully addressed. The matters are REMANDED for the following action: 1. Arrange for development to secure for the record up to date (since January 2018) clinical records of the Veteran's VA clinic treatment records. If such records are unavailable, it must be noted in the record, with explanation, and the Veteran should be so notified. 2. Following the above development, arrange for a psychiatric examination of the Veteran to assess the severity of his PTSD. The Veteran's record must be reviewed by the examiner in conjunction with the examination. The examiner should have available for review the criteria for rating mental disorders. The examiner's attention is called to the Veteran's February 2020 hearing testimony of current symptoms including suicidal ideations and hallucinations. The examiner is also requested to comment on the impact on social an occupational functioning (to include the impact on employability). 3. Send the Veteran a new VA Form 21-8940 to complete, with instruction to complete it in its entirely and submit it to VA. When that action is completed, readjudicate the matter of entitlement to TDIU, considering the determination made on the Veteran's increased rating claim for PTSD. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.