Citation Nr: A25035116 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240722-458883 DATE: April 16, 2025 ORDER New and relevant evidence having been submitted, readjudication of the previously denied claim for an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to an initial rating of 50 percent, but no higher, for PTSD is granted. REMANDED Entitlement to a total rating based on individual unemployability (TDIU) due to a service-connected disability is remanded. FINDINGS OF FACT 1. Evidence?received after the February 2023 rating decision is?new?and?relevant?to the claim for an initial rating in excess of 30 percent for PTSD. 2. Throughout the period on appeal, the severity, frequency, and duration of the Veteran's symptoms most closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for an initial rating in excess of 30 percent for PTSD have been met. 38 U.S.C. § 5108;?38 C.F.R. §§ 3.156, 3.2501. 2. The criteria for entitlement to an initial rating of 50 percent, but no higher, for PTSD have 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 FINDINGS AND CONCLUSIONS The Veteran had active service from November 2016 to November 2022. This matter is on appeal to the?Board of Veterans' Appeals?(Board) from a March 2024 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which is also the agency of original jurisdiction (AOJ). In November 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), seeking review of a February 2023 decision. On the same day, the Veteran also submitted a VA Form 21-0995 Supplemental Claim (supplemental claim), seeking readjudication of the same decision. The Veteran then submitted additional evidence that post-dates the February 2023 rating decision. In March 2024, the AOJ issued a decision on the HLR, but did not address the November 2023 supplemental claim or evidence submitted after the February 2023 decision. As the Veteran's HLR request and supplemental claim were submitted on the same day, the Board finds that the November 2023 supplemental claim and associated evidentiary submissions are properly before it. 38 C.F.R. § 20.801(a). Further, as will be discussed, the Board finds that new and relevant evidence has been submitted and will readjudicate the Veteran's claim based on the evidence of record at the time of the March 2024 rating decision on appeal. On the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement or NOD), the Veteran elected Direct Review. Therefore, the Board may only consider the evidence of record at the time of the March 2024 decision.?38 C.F.R. § 20.301. Any evidence that was submitted after the March 2024 rating decision was not considered by the Board.?38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. However, as discussed below, because the Board is remanding the claim of a TDIU, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103 (c)(2)(ii). New and relevant evidence If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all the evidence of record. 38 U.S.C. § 5108(a). New evidence means existing evidence not previously submitted to agency decisionmakers. Relevant evidence means evidence that tends to prove or disprove a matter at issue. 38 C.F.R. § 3.2501 (a)(1).? The Board finds that new and relevant evidence has been submitted to readjudicate the claim for an initial rating in excess of 30 percent for PTSD. The claim was previously denied in a February 2023 rating decision.? Since the February 2023 decision, the Veteran submitted additional evidence, including a January 2024 VA examination and lay statements. The January 2024 VA examination provides an updated medical opinion that more fully explored the Veteran's PTSD symptoms and diagnosed depressive disorder directly related to his PTSD. During the examination, the Veteran provided information about his memory loss, relationships with people around him, and his ability to meet the demands of his employment. See January 2024 VA examination. In the July 2024 NOD, the Veteran stated that he is no longer employed. The VA examination and NOD provide information about the manifestation and severity of the Veteran's PTSD symptoms. This evidence was not already of record and goes to the Veteran's request for a higher rating for his PTSD at issue before the Board. As new and relevant evidence has been received, the Veteran's application to readjudicate his claim for a higher initial rating for PTSD is granted. Entitlement to an initial rating of 50 percent, but no higher, for PTSD is granted. The Veteran's service-connected PTSD currently is rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, effective from November 7, 2022. The Veteran seeks a higher initial rating for his PTSD. By way of history, in August 2022, during active service, the Veteran filed a VA Form 526EZ claim for service connection for PTSD. In February 2023, the AOJ granted service connection and assigned a 30 percent rating effective November 7, 2022, the day after the Veteran's separation. In November 2023, the Veteran filed a supplemental claim with new and relevant evidence. In March 2024, the AOJ issued the decision now on appeal. Therefore, the rating period on appeal extends from November 7, 2022 through the present. 38 C.F.R. § 3.400. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Symptoms listed in VA's general rating formula for mental disorders are not an exhaustive checklist, but rather examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Under the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). The evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. §4.126 (b). 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 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 warranted for 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 for 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 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; memory loss for names of close relatives, own occupation, or own name In January 2023 and January 2024, the Veteran underwent VA examinations. During the most recent January 2024 examination, the Veteran endorsed an inability to focus and difficulty remembering things short-term as required for his job. The examiner noted the Veteran's PTSD was manifested by flattened affect, panic attacks more than once a week, impaired judgment, disturbances of motion and mood, and difficulty in establishing and maintaining effective work and social relationships. Regarding relationships, the Veteran reported during the January 2023 VA examination that he lived with his girlfriend of seven years and was a stay-at-home dad for their then-one-year-old daughter. He was close to his mother and brother and saw them often. He had no friends other than some Air Force friends he kept in touch with from time to time. See January 2023 VA examination. The January 2024 examination did not reflect any changes to the Veteran's personal relationships as he had described them in the examination one year earlier. The examiner noted the Veteran's feelings of detachment from others and extreme difficulty getting along with others. The Veteran reported that he would leave the house only about twice per month. Occupationally, during the January 2024 VA examination, the Veteran reported that he had recently begun a new job, working remotely at an information technology (IT) help desk, and was still on probation. He was having difficulty with remembering information from customers and his supervisor noted that as a performance deficiency. The Veteran has since been dismissed from that job due to his impaired memory, as he noted on the July 2024 NOD. Addressing the Veteran's mental status, the examiner in January 2024 noted that the Veteran's behavior was polite and cooperative, with a willingness to elaborate about the history of his mental condition. The Veteran was able to interact and relate reasonably during this examination, though he exhibited some peevishness. He displayed adequate attention and concentration. His memory short- and long-term were intact; intermediate memory was adequate. His thinking was intact, logical, and coherent. Circumstantial and tangential thought were not present. His speech was normal with clear enunciation, normal prosody and cadence; he had no difficulty carrying on a conversation. The examiner recorded no suicidal ideation, and the Veteran did not endorse that symptom, although the Veteran stated that he had attempted suicide once and occasionally has aggressive thoughts or homicidal thoughts about others. The Veteran denied hallucinations and being a danger to himself or others, while noting that he chooses to stay away from others because he may have some aggressive thoughts. The January 2023 and January 2024 examinations are mostly consistent in findings and conclusions. Notably, both examiners found the Veteran had such symptoms as depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. According to both examiners, the Veteran's overall disability picture was best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, reflective of a 30 percent rating. However, the January 2024 examination provided additional analysis of the Veteran's behavioral health, finding that the Veteran's depression-derived symptoms were significant enough to warrant an additional diagnosis of major depressive disorder. Importantly for the analysis here, the examiner noted that depression-related symptoms including anxiety and suspiciousness were equally attributable to PTSD. According to the examiner, both depression and PTSD also interchangeably manifested in the Veteran's disturbances of motivation and mood, as well as in his difficulty in establishing and maintaining effective work and social relationships. Notably, these symptoms were also identified in the January 2023 VA examination. These latter manifestations - disturbances of motivation and difficulty with effective work relationships - are uniquely associated with a 50 percent rating for PTSD. Given the consistent VA examinations and the heightened emphasis on these symptoms in the January 2024 VA examination, the Board finds that a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity for the entire appellate period. The 50 percent rating finds further support in the Veteran's history of mental health treatment for symptoms including depressed mood, anxiety, decreased engagement in activities of daily living, and social isolation. See, e.g., April 2022 treatment record, August 2022 Medical Treatment Records. The Veteran's extensive lay testimony in the record of the occupational and social impairment caused by his PTSD also supports a rating of 50 percent. See January 2023 VA examination. However, the Board finds that the lay and medical evidence overall does not show symptoms that warrant a 70 percent rating. It does not indicate obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; or neglect of personal appearance and hygiene. The January 2024 VA examination alone found the presence of near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; and difficulty in adapting to stressful circumstances (including work or a work-like setting). The Board accords the examiner's notation of these symptoms little probative weight because it is inconsistent with no such finding in the January 2023 VA examination and lacks other evidentiary support. Further, notwithstanding finding these symptoms present, the examiner concluded overall the Veteran's symptoms reflected a rating of 30 percent. Additionally, the Board notes that suicidal ideation alone, defined as a veteran's thoughts of their own death or of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas, and that may be sufficient to warrant a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Here, as discussed, the Veteran acknowledged contemplating suicide once in the past and no further treatment or endorsement of that symptom; this is confirmed by his service treatment records. See August 2022 Medical Treatment Records. Neither VA examiner noted this as a symptom. See January 2023 and January 2024 VA examinations. While the Veteran reported to the January 2024 VA examiner that he was hospitalized following a suicide attempt, a review of his medical records, to include the private treatment records he submitted for his behavioral health hospitalization, indicate that he had suicidal ideation rather than a suicide attempt. See April 2022 Medical Treatment Record - Non-Government Facility. Further, at his January 2023 VA examination, he stated he was "thinking about ending it, ... but really just wanted someone to talk to." See January 2023 VA examination. In sum, the evidence does not show the Veteran poses a persistent danger of harm to himself or others, nor does it show suicidal ideations equating a chronic increase in severity of the Veteran's PTSD. As a result, the evidence does not show suicidal ideation resulted in deficiencies in most areas as would support a 70 percent rating. Similarly, the Board acknowledges that the Veteran reported to the January 2023 VA examiner that he is easily aggravated and has angry outbursts. The Board also notes the Veteran's report to the January 2024 VA examiner that he occasionally has aggressive thoughts or homicidal thoughts about others and that he answered two of the examiner's questions in "a quasi-aggressive manner." While the Veteran's irritability during this time frame may amount to impaired impulse control and unprovoked irritability, the Board notes that the January 2024 VA examiner described the Veteran's periods of aggression as "occasional." The other evidence of record is silent regarding the Veteran's behavior while experiencing these symptoms, to include the frequency, severity, or duration of said symptoms. Consequently, the Board finds as a fact in this case that the Veteran's aggravation, angry outburst, and aggressive thoughts, to include his self-reported homicidal thoughts, do not rise to the level of unprovoked irritability with periods of violence that would warrant a higher 70 percent rating, or to grossly inappropriate behavior contemplated by a 100 percent rating. In summary, the Board finds the competent evidence supports an initial 50 percent rating, but no higher, for the Veteran's PTSD. As the Veteran's symptoms do not meet the criteria for a 70 percent rating, it follows that his symptoms also do not meet the even more stringent rating criteria supporting a 100 percent rating for the period on appeal. See 38 C.F.R. §§ 4.7, 4.130, DC 9411. Accordingly, the Board finds the persuasive evidence shows that throughout the period on appeal, the level of the Veteran's occupational and social impairment due to PTSD symptoms have met or more nearly approximated the criteria for an initial rating of 50 percent. 38 C.F.R. § 4.130 As the Board finds the persuasive evidence supports an initial rating of 50 percent, but no higher, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). REASONS FOR REMAND Entitlement to a TDIU is remanded. When entitlement to a?TDIU?is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki,?22?Vet. App.?447?(2009). In this case, the January 2024 VA examination identified symptoms relevant to the Veteran's ability to secure or follow a substantially gainful occupation due to his PTSD, including the Veteran's impaired ability to interact with others effectively in a workplace. Thus, the Board finds that the issue of entitlement to a TDIU has been raised as part of the initial rating claim but has not yet been adjudicated by the AOJ. This constitutes a pre-decisional duty-to-assist error. Remand is necessary for the TDIU claim to be developed for consideration by the AOJ. The matter is REMANDED for the following action: Adjudicate the TDIU claim. A. Dean Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jaeger, L 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.