Citation Nr: A25035989 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 241011-483767 DATE: April 18, 2025 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The competent and probative evidence establishes that the severity, frequency, and duration of the Veteran's PTSD did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 70 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from April 2003 to June 2008. In June 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a May 2023 decision. In March 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior May 2023 decision. Therefore, the Board may only consider the evidence of record at the time of the May 2023 decision. In the October 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the May 2023 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 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. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court of Appeals for Veterans Claims (Court) has since extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Entitlement to a disability rating in excess of 70 percent. Following the January 2020 rating decision which granted service connection for PTSD, the Veteran submitted a VA Form 21-526EZ on March 30, 2023. A May 2023 rating decision continued the 70 percent rating, as did the March 2024 HLR rating decision, and the Veteran appealed. Accordingly, the Board will consider whether a higher rating is warranted from March 30, 2023, to include the one-year look back period. PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Pursuant to 38 C.F.R. § 4.130, a 70 percent evaluation 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 evaluation is warranted for total occupational and social impairment, due to symptoms such as the following: 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. Under the General Formula for Mental Disorders, 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. In Vazquez-Claudio v. Shinseki, the Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level."). Thus, the impact of all psychiatric symptoms must be determined as to the level of impairment those symptoms cause both socially and occupationally, as opposed to limiting consideration to those symptoms listed under that specific rating. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as 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, 443 (2002). The Board is not limited in its determination as to the proper disability rating to be assigned based solely on the symptoms listed for the higher rating. Rather, consideration is given to whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned." Id. The Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by a VA psychiatrist in May 2022 which found that the Veteran had total social and occupational impairment. The psychiatrist reported reviewing evaluations from 2013 and 2018 in preparing the evaluation. The Veteran's family relations were described as divorced in 2003, was remarried with a daughter and stepdaughter. He reported no legal problems, and education level of high school graduate and working as a licensed practical nurse (LPN), which the psychiatric inaccurately noted as licensed nurse practitioner. His occupational status was not specified. The examiner reported that the Veteran experienced depressed mood, anxiety, panic attacks more than weekly, chronic sleep impairment, impairment of short and long term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and family relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and impaired impulse control. At the April 2023 VA PTSD examination, the examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. His family relations were described as distant; he lived with his wife, two children, and a dog. He reported no legal problems, working 12 hour shifts as a registered nurse, and finding purpose in his work. The examiner reported the following symptoms: depressed mood, anxiety, suspiciousness, weekly panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and family relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and intermittent inability to perform activities of daily living. On mental status examination, the Veteran had linear and logical thought process, was oriented in three spheres, was neither suicidal nor homicidal, had intact memory and concentration, and had anxious mood. There were no indications of a perceptual or thought disorder, and he seemed in good contact with reality. He reported no further symptoms. He was reported as capable of managing his financial affairs. The Board recognizes that in a statement (which is argument and not lay evidence) submitted with his VA Form 10182, the Veteran contended that he has "been seeing and treated by" his VA treating psychiatrist "for many years. [He] knows me and my PTSD better than anyone else." See October 2024 VA Form 21-4138. However, it must be noted that the DBQ completed by this treating psychiatrist, Dr. J.F., did not endorse a single symptom contemplated in the 100 percent rating criteria. Moreover, Dr. J.F. did not explain how he found the Veteran to have total social and occupational impairment as a result of PTSD, while also noting that the Veteran was either a full-time student or working full-time as a nurse. The examination includes no mental status exam or report of present affect or quality of cognitive or affective functioning, but there were no indications of a perceptual or thought disorder, and he seemed in good contact with reality. The Veteran's psychiatrist noted social avoidance and withdrawal, inability to control temper, and intrusive thoughts when presented with triggers as additional symptoms but noted no suicidal thoughts or impulses. However, the Veteran was reported as capable of managing his financial affairs. The treating VA provider concluded that the Veteran was unable to work due to the severity of his anxiety, cognitive disabilities, impaired social interactions and explosive behavior when stressed. However, the provider also noted that the Veteran's severity of symptoms "has been and will interfere with his ability to obtain and maintain gainful employment." This is not suggestive of total occupational impairment, but of TDIU, which is addressed in the Remand section below. Additionally, VA outpatient records during this period, described as insightful and having good self-esteem, and the records reflect that he reported that he was goal-directed and enjoyed various holiday gatherings with his family. These records also note that the Veteran continued to work at the hospital intensive care unit; mental status examination appeared to be within normal limits aside from an anxious mood. These specifically found good eye contact, spontaneous coherent and relevant speech, normal voice tone and rate, goal direction, anxious mood and appropriate affect, no gross thought disorder nor symptoms of psychosis, no suicidal or homicidal ideations plans nor intent, and good reality testing. See, e.g., May 2022 to February 2023 VA mental health notes. While having difficulties with anxiety and explosive behavior, the Veteran held a full-time position as a nurse and was studying to become a registered nurse. Without exception, did not reflect any report of suicidal or homicidal ideation or plan, let alone hospitalization for either of these. The Board finds the April 2023 VA evaluation to be thorough and well-reasoned, and the most accurate description of the Veteran's PTSD symptomatology for the relevant period. The VA examiner endorsed symptoms generally indicative of a 70 percent rating, and overall indicated that the Veteran's PTSD was of a severity consistent with that rating criteria. While she did note that the Veteran had "intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene," this is not shown in the VA treatment records documenting the Veteran's visits with his VA treating provider. Finally, the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead, 29 Vet. App. at 19. However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records. He specifically reported to the May 2023 VA examiner that he had periodic thoughts that his family would be better off without him, but denied suicidal ideation. The Board does not doubt that the Veteran sincerely believes his symptoms were more severe than contemplated by his previously assigned 70 percent rating. The Veteran is competent to report on factual matters of which he has first-hand knowledge. Layno v. Brown, 6 Vet. App. 465, 471 (1994). However, the Board finds the assessments and findings from the 2023 VA medical examiner more probative, and in assigning a rating, affords the May 2023 VA examination findings more probative weight than the May 2022 clinician-completed DBQ or the Veteran's subjective reports. Indeed, the current 70 percent rating contemplates severe psychiatric impairment. But the record does not show a disability picture that more nearly approximates the criteria for a 100 percent rating at any time during the appeal period. Accordingly, the criteria for a 100 percent rating are not met, and the appeal must be denied. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable, because otherwise the evidence is persuasively against the assignment of higher ratings beyond that awarded by this decision. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND As noted, the Veteran's treating provider indicated that he was unable to work due to his PTSD. Notwithstanding the Board's analysis above in the context of assigning a rating for the period on appeal for PTSD, it recognizes the provider's observation of the Veteran over a period of years and opinion as to how the Veteran's PTSD causes impairment at his job. Similarly, at the May 2023 VA examination, the Veteran reported "getting into a few issues and conflicts at work due to his anger and irritability... He reported that working with veterans, there is an unspoken understanding. He also said that others know there is 'something not right' with him so they generally leave him alone. He is able to work without interaction and independently and take space as needed. The veteran described his job as 'the only routine that works.'" Recently, the Court has held that a "protected work environment" means "a lower-income position that due to the Veteran's service-connected disability or disabilities is shielded in some respect from competition in the employment market." Labruzza & McBride v. McDonough, 37 Vet. App. 111 (2024) ("we use the words 'in some respect' deliberately here to convey that employment need not be completely shielded or separated from the employment market to qualify as being in a protected environment." Further, as noted, service connection for PTSD has been in effect since 2013; the schedular criteria for TDIU are met as of April 24, 2017. Thus, the Board finds that the issue of TDIU is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as the Veteran has not filed a VA Form 21-8940 or other paperwork specifically addressing any accomodation(s) made for him at his place of employment, remand is required to address a statutory or regulatory duty and develop the issue of TDIU. 38 C.F.R. § 20.802(a). (Continued on the next page) ? The matter is REMANDED for the following action: Develop the issue of TDIU, to include soliciting from the Veteran a VA Form 21-8940, statements from his employer, or other documentation addressing whether the Veteran's current position constitutes a protected work environment. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carson, M. 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.