Citation Nr: 23048901 Decision Date: 09/06/23 Archive Date: 09/06/23 DOCKET NO. 19-37 851 DATE: September 6, 2023 ORDER A 70 percent disability rating for post-traumatic stress disorder (PTSD) with anxiety, depression, memory loss, and insomnia is granted from November 20, 2017 to May 3, 2020.. Entitlement to a disability rating exceeding 70 percent for PTSD with anxiety, depression, memory loss, and insomnia is denied. FINDINGS OF FACT 1. From November 20, 2017 to May 3, 2020, the evidence The competing lay and medical evidence is in approximate balance regarding whether PTSD with anxiety, depression, memory loss, and insomnia was manifested by symptoms causing occupational and social impairment with deficiencies in most areas. Thus, the Board resolves the benefit of the doubt in favor of the appellant. 2. For the entire appeal period, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for PTSD with anxiety, depression, memory loss, and insomnia from November 20, 2017 to May 3, 2020 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 2. The criteria for a disability rating in excess of 70 percent for PTSD with anxiety, depression, memory loss, and insomnia are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2005 to August 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in March 2020 when it was remanded for further development. New evidence was added to the claim after the October 2019 Statement of the Case (SOC) was issued. While there is no waiver from the Veteran, an April 2023 rating decision considered the evidence and readjudicated the claim for the entire period on appeal. As such, remanding the claim for a supplemental SOC readjudicating again on the same evidence will not serve any useful purpose. Soyini v. Derwinksi, 1 Vet. App. 540, 546 (1991) (holding that remand is unnecessary where it would impose additional burdens on the Board with no benefits flowing to the veteran.). Procedural history and appeal period The matter was remanded in March 2020, at which time the Board mischaracterized the claim as entitlement to an increased rating for PTSD, with anxiety, depression, memory loss, and insomnia, currently evaluated as 30 percent disabling prior to November 20, 2017, and 50 percent disabling from November 20, 2017. As explained below, the period on appeal begins November 20, 2017, and no earlier. A September 2014 rating decision granted service connection for PTSD and assigned an initial 30 percent rating. In May 2015 the Veteran timely filed a notice of disagreement with the initial rating assigned. In October 2015, a SOC was issued. However, the Veteran did not perfect the appeal by filing a VA Form 9 substantive appeal within 60 days of the SOC, and so the September 2014 rating decision and initial rating became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran's Intent to File a Claim for Compensation was received November 20, 2017. His Supplemental claim for an increased rating for PTSD was received on November 14, 2018, within one year of the Intent to File. The January 2019 rating decision, on appeal, increased evaluation for PTSD to 50 percent effective November 20, 2017, the date his intent to file was received. This rating decision was fully appealed to the Board. Therefore, the appeal period before the Board begins on November 20, 2017, the date of the Intent to File the increased rating claim. During the pendency of the appeal, a July 2020 rating decision partially granted the appeal, assigning an increased staged evaluation of PTSD with anxiety, depression, memory loss, and insomnia from 50 percent to 70 percent effective May 4, 2020. In an April 2023 rating decision issued under the Appeals Modernization Act (AMA) adjudicating the issue of entitlement to service connection for traumatic brain injury (TBI), the RO granted service connection for TBI with subjective loss of smell (claimed as anosmia) effective November 20, 2017. The RO stated: "This disability is being evaluated together with the service connected PTSD with anxiety, depression, memory loss, and insomnia, which is currently 70 percent disabling." This rating decision did not alter the evaluation for PTSD. The Board finds that the issue on appeal in this legacy docket remains limited to the evaluation for PTSD with anxiety, depression, memory loss, and insomnia under the schedule for rating psychiatric disabilities. If the Veteran disagrees with the initial rating assigned for TBI, he may still request review or appeal the initial rating assigned for TBI in the April 2023 rating decision that awarded entitlement to service connection for TBI, as it is still within the one year review period. However, the Board will not adjudicate the rating for TBI in this decision. Increased Ratings The Veteran contends a higher evaluation is warranted for PTSD. The issue before this Board is whether the Veteran's PTSD symptoms caused the level of impairment required for a disability rating of 50 percent is from November 20, 2017 to May 3, 2020, and 100 percent from May 4, 2020 to the present. In a January 2020 correspondence, the Veteran's attorney contended that the Veteran's PTSD symptoms entitles him to at least 70 percent rating for the entire appeal period. The Board agrees, for the reasons provided below. Relevant law and regulations A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 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 including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27 ; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Codes 9411. The schedule for rating psychiatric disabilities, to include PTSD and other acquired psychiatric disorders, provide that a 30 percent rating is when 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 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. 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, 29 Vet. App. at 22; 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). 1. Entitlement to a 70 percent evaluation for service-connected PTSD with anxiety, depression, memory loss, and insomnia from November 20, 2017 to May 3, 2020 Prior to January 2019, there is little to no evidence regarding mental health symptoms. In a January 2019 examination for PTSD, the examiner provided that the Veteran presented with symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, memory loss, such as forgetting names, directions or recent events, disturbance of motivation and mood and suicidal ideation. The Veteran reported that he met his wife while working as a recruiter in the military and they currently have 4 children. He reported concerns that his "ups and downs" have a negative impact on his children. He reported that "my kids look at me and are afraid". With regards to his occupation, he reported that he is employed as a Corrections Officer and works rotating 12 hour rotating shifts. He and his wife run an in-home daycare service and he provides assistance and help with parenting when he is off duty. He reported he was not currently engaged in counseling due to his work and home schedule. The examiner indicated that the Veteran's PTSD symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In a March 2019 lay statement, the Veteran's wife provided compelling competent and credible testimony of frequent and severe suicidal ideation, unprovoked irritability with outbursts of rage, poor impulse control, obsessive and compulsive behavior with serious consequences, numerous calls to the veteran suicide hotline for help. Her testimony includes details of an incident in March 2019 when the Veteran purchased specific supplies to enact a suicide plan, going beyond passive or fleeting thoughts of suicidal ideation. A VA treatment record contemporaneous with the wife's statement showed the Veteran reporting that he has told his wife he was going to kill himself. As the analysis turns on the Veteran's level of occupational and social impairment, primarily whether there are "deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood," the Board will organize its analysis around these areas. The Veteran was not in school during the appeal period, so that area is not applicable. Work With respect to the area of work, the rating criteria show that a 50 percent rating is characterized by symptoms that result in reduced reliability and productivity, to include difficulty establishing and maintaining effective work relationships. The more severe level of impairment warranting a 70 percent rating is characterized by difficulty in adapting to stressful circumstances including work or a work like setting or an inability to establish and maintain effective work relationships. During the period on appeal, the Veteran has consistently been employed. There is no indication that the Veteran was laid off from any employment. During the January 2019 examination, the Veteran reported that post-military he is employed as a Correction Officer and works rotating 12-hour shifts. His wife runs an in-home daycare service, and he provides assistance and help with parenting when he is off duty. The January 2019 examiner indicated that the Veteran did not have difficulty in establishing and maintaining effective work and social relationships. Moreover, he did not have difficulty in adapting to stressful circumstances, including work or a work like setting. The May 2020 VA examiner reported that the Veteran's mental health symptomology would equate with social and occupational functioning consistent with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily in routine behavior, self-care and conversation. The totality of the evidence weighs persuasively against finding a deficiency in the area of work at the level contemplated for a 70 percent disability rating. Family/interpersonal relations The rating criteria differentiate between the type and degree of the symptoms, or their effects, that would justify a 50 percent rating (difficulty in establishing and maintaining effective work and social relationships) versus a 70 percent rating (inability to establish and maintain effective relationships). During the January 2019 VA examination, the Veteran reported that he met his wife while working as a recruiter in the military and they currently have four children. He reported that he helps with his wife's home day-care business and also helps take care of their children. He reported that his "ups and downs" have a negative impact on his children, and also reported that "my kids look at me and are afraid." His wife reported that if their marriage ever ended or they separated he would kill himself, and that his outbursts of rage and disproportionate, inappropriate reactions to minor incidents were beginning to be imitated by his children. These symptoms arguably show an inability to maintain effective relationships. While he remains married and living with his family, the impact of his symptoms on his family appeared to be severe. Thus, the Board finds a deficiency in the area of family relationships. Judgment The rating criteria differentiate between the type and degree of the symptoms, or their effects, that would justify a 50 percent rating (impaired judgment versus a 70 percent rating (impaired impulse control, such as unprovoked irritability with periods of violence). The Veteran's insight and judgment were described as good on mental status examination at the January 2019 VA examination. There was no evidence of violence at any time during the appeal period, but his wife described "blackouts of rage" and explosive lack of impulse control. She described disproportionate reactions to normal household events like a child spilling milk. While his judgment may have been good at the examination, the wife's testimony is based on years of observed and experienced symptoms and the Board finds her evidence most persuasive. Thus, the Board finds an impairment in the area of judgment. Thinking The rating criteria provide examples of the type and degree of the symptoms, or their effects, that would justify a 70 percent rating versus a 50 percent rating with respect to the area of thinking. A 50 percent rating is warranted for symptoms such as circumstantial, circumlocutory, or stereotyped speech; difficulty understanding complex commands; impairment of short- and long-term memory; and impaired abstract thought. The more severe level of impairment warranting a 70 percent rating is characterized by obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; and spatial disorientation. During the January 2019 VA examination, the Veteran reported mild memory loss, such as forgetting names, directions or recent events. Mild memory loss is consistent with the level of impairment associated with a 30 percent disability rating. There is no evidence of speech intermittently illogical, obscure, or irrelevant; or spatial disorientation. The Veteran's wife described obsessive playing of a video game that interfered with routine activities and had serious consequences. This may not be a ritual, per se, but does demonstrate an impairment in thinking. However, in the absence of spatial disorientation or serious speech problems, the Board finds that this symptom alone does not produce a deficiency in the area of thinking consistent with the level contemplated for a 70 percent disability rating. Mood The rating criteria provide examples of the type and degree of the symptoms, or their effects, that would justify a 70 percent rating versus a 50 percent rating with respect to the area of mood. A 50 percent rating is warranted for symptoms such as flattened affect, panic attacks more than once per week, and disturbances of motivation and mood. The more severe level of impairment warranting a 70 percent rating is characterized by near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, suicidal ideation, neglect of appearance and hygiene, and difficulty adapting to stressful circumstances. PTSD symptoms include depression, anxiety, panic attacks that occurred weekly or less than often, chronic sleep impairment, disturbances of motivation and mood and suicidal ideation. His wife also testified to neglect of hygiene and going days without changing clothes, showering, or brushing his teeth. While the Veteran reported occasional suicidal ideation to the January 2019 VA examiner, he indicated "none current." However, the early 2019 VA treatment records and his wife's lay statement convey a very different story regarding suicidal ideation. The highly detailed, specific, and sincere testimony of his wife of frequent and severe suicidal ideation, threats, and an incident of taking steps to implement a plan are competent, credible, and highly probative. The United States Court of Appeals for Veterans Claims (Court) has held that "the language of [38 C.F.R. § 4.130] indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). However, Section 4.130 "'requires not only the presence of certain symptoms' but also that those symptoms have caused the level of occupational and social impairment associated with a particular disability evaluation." Id. at 14-15 (quoting Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013)). Here, the Board finds that the frequency, severity, and duration of the symptom of suicidal ideation are the type contemplated by Bankhead and there is a deficiency in the area of mood. Summary The Board finds deficiencies in the areas of family relationships, judgment, and mood. Therefore, his disability produced symptoms of such severity, duration, or frequency to result in occupational and social impairment with deficiencies in "most" areas. A 70 percent disability rating is warranted from November 20, 2017 to May 3, 2020. 2. Entitlement to an evaluation in excess of 70 percent for service-connected PTSD with anxiety, depression, memory loss, and insomnia Having reviewed the evidentiary record thoroughly, the Board finds the evidence persuasively weighs against the assignment of an evaluation in excess of 70 percent from May 4, 2020. 38 C.F.R. § 4.7. The Board finds that the severity, duration, and frequency of psychiatric symptoms during this period on appeal does not rise to the level of total social and occupational impairment. In a May 4, 2020 examination for PTSD, the examiner provided that the Veteran presented with symptoms of depressed mood, anxiety, suspiciousness, flattened affects, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstance, including work or work like setting and suicidal ideation. The May 2020 VA examiner reported that the Veteran has effective social connections with family and obligations personally and professionally. He reported having friends at work. The Veteran's insight and judgment were described as good on mental status examination. The May 2020 VA examiner reported that the Veteran's memory for remote, recent and immediate events were intact. The examiner indicated that the Veteran endorsed passive suicidal ideation, however he did not present an imminent concern at that time based on the Veteran's effective social connection with family and obligations personally and professionally. The Veteran reported living with his wife and kids. He sees his mother and sister about once a year. Every couple of months they visit his mother-in-law for dinner. He reported having friends with whom he works. He reported full time employment as a recruiter for a staffing agency for the last one year. When asked how he spends his free time, he stated that "when I get home, I don't have a lot of free time, spend time caring for my 14 months old son, and if he is asleep, mostly just sits on the couch waiting for him to wake up and care for him some more". The examiner indicated that the Veteran endorsed passive suicidal ideation, however the concerns do not present an imminent concern at this time based on the Veteran's effective social connection with family and obligations personally and professionally. The examiner indicated that the Veteran's PTSD symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. After review of the foregoing evidence, the Veteran has not demonstrated symptoms of the frequency, severity, or duration consistent with a 100 percent rating. Specifically, there is no evidence which documents symptoms of or similar to: gross impairment in communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. On the contrary, ongoing treatment records and the May 2020 examinations reported that he was fully oriented, thought process was logical and goal oriented, memory and concentration appeared intact. He behaved appropriately and had insight and good judgment. The Board does not find the total occupational impairment necessary for a 100 percent rating at any time during the appeal period. The record indicates that he has maintained full time employment throughout the appeal period. After work, he also supports his wife in a home daycare. When not working, he spends his time taking care of his children. The fact that the Veteran has remained successfully employed and has friends at work shows he was not totally occupationally impaired. Based on the foregoing, the Board finds that the competent and credible evidence is neither evenly nor approximately balanced as to whether entitlement to a disability rating exceeding 70 percent for PTSD with anxiety, depression, memory loss, and insomnia is warranted. Rather, the evidence persuasively weighs against finding that his symptoms produce total occupational and social impairment. The benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The claim is denied. Lastly, in the March 2019 notice of disagreement, the Veteran's attorney submitted a largely boilerplate addendum that included his boilerplate total disability rating based on individual unemployability (TDIU) paragraph. This paragraph states that a formal claim for benefits is not needed to raise TDIU. This is true; however, the attorney did not provide any specific argument regarding this Veteran's employment and the Veteran has made no such contention. On the contrary, as discussed above, the Veteran has remained employed full time and also helps with his wife's home daycare. Accordingly, the Board finds that this generic boilerplate paragraph with no relevant argument fails to raise a claim of entitlement to a TDIU rating in the context of this increased rating claim. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Asare, 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.