Citation Nr: 22018462 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-59 491 DATE: March 29, 2022 ORDER From April 16, 2015, entitlement to an initial evaluation of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), prior to August 3, 2021, is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's symptoms of PTSD more nearly approximate occupational and social impairment with deficiencies in most areas; his symptoms do not more nearly approximate total occupational and social impairment. CONCLUSION OF LAW From April 16, 2015, the criteria for entitlement to an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in a December 2021 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation of the Veteran's PTSD to 50 percent disabling, effective December 3, 2016. As this was not a full grant of benefits sought, the issue remained on appeal. See A.B. v. Brown, 6 Vet. App. 35 (1993). The Board remanded the claim for further development in May 2020. That development has been completed, and the case has since been returned to the Board for appellate review. Increased Rating 1. Entitlement to an initial rating higher than 30 percent for PTSD, prior to December 3, 2016, and to a rating higher than 50 percent, thereafter. Service connection for PTSD was granted in a July 2015 rating decision, at which time a 30 percent rating was assigned, effective April 16, 2015. In September 2015, a notice of disagreement with the rating assigned was received. In a December 2021 rating decision, the Veteran's rating was increased to 50 percent, effective December 3, 2016. The Veteran seeks an increased rating. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the Veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). The Veteran is currently assigned a 30 percent evaluation for PTSD prior to December 3, 2016, and a 50 percent evaluation on or after December 3, 2016, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent evaluation is warranted when the psychiatric disorder results 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 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; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when the psychiatric disorder results in 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. A 70 percent rating is warranted when the psychiatric disorder results in 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 100 percent rating is warranted when the psychiatric disorder results in 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. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. 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, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). In an April 2015 statement, the Veteran reported experiencing intrusive symptoms, which are worsened by talking about his in-service experiences. Such symptoms included an inability to sleep due to unpleasant memories, avoidance of most social situations, and memory issues. The Veteran also reported that he does not watch war movies and that he has a lot of guilt over his in-service experiences. A VA treatment note from May 2015 demonstrates that the Veteran was experiencing difficulty sleeping. The Veteran reported that he experiences road rage and wants to "ram" people, but he does not because he knows the consequences. The Veteran stated he feels more comfortable with family members and avoids old classmates and friends. He also reported that he often feels sad and guilty and tries to push these feelings out of his mind. The Veteran was afforded a VA examination in July 2015, where it was noted that he had diagnoses of PTSD, alcohol use disorder, and unspecified depressive disorder (which was in remission). The examiner opined that it was possible to differentiate what symptoms are attributable to each diagnosis, and further stated that the Veteran's dislike of crowds, anxiety and panic attacks are a result of his PTSD and his mild memory problems and irritability were due to his alcohol use disorder. Ultimately, the examiner opined that the Veteran experienced occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. During the July 2015 VA examination, the Veteran reported that he gets along "pretty good" when his children and step-children visit with their children and stated that he is "glad to see them come and glad to see them go." The Veteran reported seeing some grandchildren once or twice a year and others once or twice a week. The Veteran stated that he did not like being in crowds. Symptoms included irritable behavior and angry outbursts, hypervigilance, and sleep disturbance. The duration of the disturbances is more than a month, and the disturbances cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Further symptoms include anxiety, panic attacks that occur weekly or less often, chronic sleep impairment and mild memory loss. The examiner observed that the Veteran was cooperative but anxious, and he became calmer as the appointment progressed. The Veteran was casually groomed, addressed answered questions appropriately, and his eye contract and psychomotor activity was within normal limits. The Veteran's remote memory was intact, but his recent memory was mildly to moderately impaired. The Veteran's insight and judgment also appeared to be intact. The Veteran's thought content did not demonstrate evidence of delusions or hallucinations. The examiner opined that the Veteran convincingly denied suicidal or homicidal ideations. It was observed that the Veteran worked with his step-son, who owned a construction company, and he also did carpentry work, household chores, and yardwork. The Veteran also stated that he gives his wife money to pay the bills. In a September 2015 notice of disagreement (NOD) the Veteran reported having panic attacks often because of stimuli and that noise makes him feel jittery and nervous. The Veteran also stated he avoids all social interaction, and his judgment, reasoning, and rationale are all illogical and that he does not have any coping skills. In the Veteran's VA Form 9, received in December 2016, he stated that he was not employed due to his PTSD symptoms. The Veteran also reported that he is not able to manage his finances, and his wife gives him money on an as-needed basis. The Veteran reported not having any social interactions, other than accompanying his wife to visit his stepson. He also reported being depressed at most times, having a lot of anxiety especially when going to the doctors, has poor sleep, and recalls times in Vietnam often. A VA treatment note dated January 2017 notes that the Veteran stopped working on the first of the year and that it is more difficult for him to be around people. During a December 2017 VA mental health appointment, the Veteran reported that he has been doing okay but still has moments where he feels "down," and he was still not getting much sleep. During a February 2019 VA mental health appointment, the Veteran reported experiencing an increase in anxiety for the past three months and attributed some of that to family stressors. The Veteran also reported that he still wakes up several times in the night but is able to go back to sleep. The Veteran stated that he does not do much during the day and that he attends church with his family. The Veteran was afforded a VA examination in November 2021, where the examiner noted that the Veteran had a diagnosis of PTSD and alcohol use disorder (which is in early remission). The examiner noted that it is not possible to differentiate what portion of each symptom is attributable to each diagnosis. The examiner concluded that the Veteran experienced 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. The examiner observed that the Veteran currently lives with his wife of 24 years and reports good relationships with his children and step-son. The Veteran has limited social activities and has no particular hobbies or interests. The Veteran retired in 2016 after working around 16 years in construction. The Veteran's symptoms include depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and mild memory loss. At the time of the November 2021 VA examination, the Veteran was casually dressed and displayed adequate grooming and hygiene, had fair eye contact, unremarkable psychomotor activity, clear and coherent speech, no signs of distorted thoughts or perceptions and appropriate affect. The Veteran was not shown to have flight of ideas or loose associations, delusions, or hallucinations. The Veteran's cognition and concentration was adequate, and his remote and recent memory were intact, and he was oriented in all spheres. The Veteran relayed that he had difficulty initiating and maintaining sleep and had occasional nightmares. The examiner observed that the Veteran's PCL-5 score reflected significant symptoms related to PTSD, including intrusive remembrance, avoidance of traumatic stimuli, disrupted affect and cognition, and physiological arousal. The examiner also found that the Veteran was capable of managing his financial affairs. In February 2022, the Veteran's representative argued that the Veteran is entitled to an increased rating. It was asserted that the Veteran has irritable behavior and angry outbursts with little or no provocation, typically expressed as verbal or physical aggression toward people or objects. It was noted that the Veteran reports that he has angry outbursts, gets upset very easily, and that he starts shaking because he does not want to hurt anybody. The Board finds the Veteran exhibits symptoms that demonstrate occupational and social impairment with deficiencies in most areas, including unprovoked irritability, angry outbursts, difficulty in adapting to stressful circumstances, and near-continuous anxiety and depression. Overall, the Veteran's symptoms more nearly approximate a 70 percent rating, throughout the period on appeal. The Board, however, does not find that the Veteran is entitled to a 100 percent disability rating because the evidence does not suggest he has total occupational and social impairment. Regarding the Veteran's occupational functioning, as a result of this decision, the Board is remanding the issue of entitlement to a TDIU, discussed subsequently; however, the evidence does not indicate he also has total social impairment, to warrant a 100 percent rating for PTSD. He has not exhibited symptoms such as grossly inappropriate behavior, memory loss for his name or names of close relatives, or disorientation to time or place. He has consistently denied suicidal or homicidal ideation, plan, or intent; the evidence indicates the Veteran is not in persistent danger of hurting himself or others. The Veteran has consistently been found to be oriented in all spheres with no reports of psychotic symptoms. The Veteran indicated that he is still married and maintains relationships with some family members. Based on the entirety of this record, the Veteran's disability picture for his PTSD most closely approximates the 70 percent disability rating because there is evidence of serious, but not total impairment. Overall, the Board finds that he did not exhibit symptoms indicative of a 100 percent rating, and the overall level of impairment did not more nearly approximate total social impairment during the claim period. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list but are examples of the type and severity of symptoms that indicate a certain level of disability. Examining the Veteran's PTSD symptoms, however, the Board concludes that the Veteran's symptomatology more nearly approximates the criteria for a rating of 70 percent, but no higher, for the entire period on appeal. In reaching these conclusions, all evidence has been considered and reasonable doubt has been resolved in the Veteran's favor. REASONS FOR REMAND 2. Entitlement to a TDIU, prior to August 3, 2021. The Board notes that the Veteran is in receipt of a 100 percent rating, from August 3, 2021. As a result of this Board decision, the Veteran has been granted a 70 percent rating for PTSD, effective April 16, 2015. Therefore, the Veteran is schedularly eligible for a TDIU, prior to August 3, 2021. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a TDIU may be considered part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran asserted in his December 2016 VA Form 9 that he was unemployed and unable to gain or sustain meaningful employment due to his PTSD symptoms. As such, on remand, the claim for a TDIU should be properly developed and adjudicated. The matters are REMANDED for the following action: Appropriately develop the Veteran's TDIU claim. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.