Citation Nr: 24017396 Decision Date: 04/23/24 Archive Date: 04/23/24 DOCKET NO. 20-05 593 DATE: April 23, 2024 ORDER Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT During the period on appeal the weight of the evidence regarding the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from June 1974 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO). The claim for a higher evaluation for PTSD was most recently before the Board in September 2023 when it was remanded for additional development. The Board finds there has been substantial compliance with the remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an evaluation in excess of 70 percent for PTSD. The Veteran seeks an evaluation in excess of 70 percent for PTSD. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155 ; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board will assign staged ratings for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is currently evaluated under Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. 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). 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. When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall 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. The question before the Board is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran was afforded a VA examination in December 2017. The Veteran was diagnosed with PTSD. The examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported symptoms of depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; impairment of short and long term memory; flattened affect; difficulty in understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstance, including work or work like setting; inability to establish and maintain effective relationships; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In another report, the specific symptoms identified included: depressed mood, anxiety, chronic sleep impairment, impairment of short and long term memory; flat affect; difficulty understanding complex commands, impaired judgment, disturbance of motivation and mood, difficulty in establishing and maintaining effect work and social relationships, difficulty in adapting to stressful circumstances including work or work like settings. The Veteran was afforded a VA examination in January 2018. The Veteran was diagnosed with PTSD. The examiner noted that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was found to have symptoms of depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; difficulty in understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Observations of the examiner were that the Veteran came to the session alone. He was appropriately dressed and groomed for the occasion. He had "shades" on his eyes. He was open and communicative. Affect and mood were congruent. He was receptive and expressive and language were adequate. Rapport was established and maintained. The Veteran denied suicidal or homicidal ideations. Judgement and impulse control were fair. In February 2019 the Veteran's representative indicated that the Veteran had symptoms of persistent negative emotional state, minimal interest in significant activities, detachment from others, inability to experience positive emotions, reckless of self-destructive behavior, disturbance causing clinically significant distress or impairment in all aspects of functioning, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The representative argues that the symptoms warrant a 100 percent disability rating. In a statement dated in December 2019 the Veteran reported symptoms of anger, anxiety, denial, depression, difficulty making decisions, emotional numbing, flashbacks, guilt, heavy use of alcohol, inability to make and keep friends, intrusive thoughts, isolation, lack of self-esteem, memory loss, neglect of family, no friends, overly concerned with personal hygiene, panic attacks, problems with communication, and inability to share feelings. In December 2021 the Veteran presented to walk-in well groomed, well spoken, alert and oriented times three with good eye contact. The Veteran was noted to be a recovering alcoholic of 27 years sober. The Veteran worked and hoped to retire in the following August. He had anxiety and low self-esteem. His wife was the only person he had anger issues with. In a treatment record dated in March 2022, the Veteran was dressed appropriately for the weather and had good hygiene. There was no psychomotor agitation. Speech was regular in rate and rhythm, and had normal volume when he spoke. He was depressed and mildly anxious. His mood was congruent and thought processes were within normal limits. The Veteran did not endorse any abnormal thought content, suicidal, or homicidal ideation. Memory was grossly intact. The Veteran was attentive with average insight and good judgment. In March 2022 noted that the Veteran is employed for the prior 15 years as an electrical and instrumentation technician. A May 2023 treatment note showed that the Veteran was negative for hallucinations, behavioral problems, confusion, and agitation. The Veteran had normal mood and affect. His behavior was normal. The Veteran was afforded a VA examination in December 2023. The Veteran was diagnosed with other specified trauma and stressor related disorder, and adjustment disorder with mixed anxiety and depressed mood. The examiner noted that the symptoms could be distinguished with the exception of anhedonia. The examiner found that the Veteran had 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 Veteran was noted to have problems with his spouse and that he was seeking a divorce. He lived alone. He kept in touch with a surviving brother and five sisters. He was particularly attached to his current wife's six-year-old granddaughter that he saw two or three times a year. He described himself as inactive when not working. The Veteran was working but planned to retire in January 2024. He reported that he needed to quit working because of his knee and back problems. His current relationship had also "taken a toll" on him. The Veteran had symptoms of depressed mood, anxiety, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The claimant presented appropriately dressed and adequately groomed. He made little eye contact. He appeared to be briefly emotional when talking about his traumas. He was otherwise emotionally composed. His responses were concise and relevant, and he exhibited intact insight and intact cognitive functioning. The Board finds that the weight of the evidence of record does not support an evaluation in excess of 70 percent for PTSD. The Board acknowledges that in December 2017 and January 2018 the Veteran was noted to have significant impairments including near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impairment of short and long term memory, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstance, including work or work like setting, inability to establish and maintain effective relationships, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. However, at that time, the examiner found that the Veteran's disability picture more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Thereafter, in December 2019, the Veteran reported isolation, memory loss, neglect of family, no friends, panic attacks and an inability to share feelings. However, the Veteran reported being overly concerned with personal hygiene. Subsequent treatment records show that the Veteran was dressed appropriately for weather and had good hygiene. The Veteran was also noted to be negative for hallucinations, behavior problems, confusion, and agitation. Finally, upon examination in December 2023, the Veteran was noted to have 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 Board acknowledges that the Veteran has reported problems with his spouse and that he was seeking a divorce. However, the problems were noted to be due to the way the spouse treated the Veteran. During the period on appeal the records report that the Veteran was employed and worked 12-hour shifts. In addition, the Veteran remained in contact with his family as well as with his spouse's granddaughter. Therefore, the Board finds that the weight of the evidence during the period on appeal does not support a finding that the Veteran was totally occupationally and socially impaired. Thus, entitlement to an evaluation in excess of 70 percent for PTSD is denied. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. Entitlement to TDIU was raised by the record before the Board. The claim for TDIU is before the Board as part of the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Review of the claims file shows that the Veteran has reported employment difficulty and that he was planning on retiring in January 2023. However, the claims file does not show that the Veteran has completed a VA Form 21-8940 or that the issue of entitlement to TDIU has otherwise been developed. As such, the claim must be remanded. The matters are REMANDED for the following action: Ask the Veteran to complete an updated VA Form 21-8940 Application for Increased Compensation Based on Unemployability. Complete any additional development indicated by the information on the returned form. T. RAYMOND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.