POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The veteran, who served from August 2002 to May 2006, appeals the denial of an increased disability rating for PTSD and the denial of TDIU for a specific period. The Board granted a 100 percent disability rating for PTSD, effective May 21, 2015, finding that the veteran's symptoms met the criteria for total occupational and social impairment. The Board noted the veteran's poor family relationships, lack of social outlets, suicidal ideations, and a mental breakdown leading to job loss as evidence of total impairment. The veteran's testimony regarding panic attacks, nightmares, memory issues, and difficulty maintaining relationships supported this finding. The Board applied the benefit of the doubt to grant the 100 percent rating. The case was remanded for further development regarding the veteran's right knee disabilities, specifically for a current examination to assess the severity of degenerative joint disease and limitation of motion. Additionally, the TDIU claim for the period of May 21, 2014, to May 20, 2015, was referred for extraschedular consideration due to a reasonable possibility that the veteran's PTSD caused unemployability during that time, based on his assertions of a mental breakdown and threatening a coworker. The Board found the 100 percent rating for PTSD began on the claim date, May 21, 2015, as evidence did not support an earlier effective date.

Rationale

Holistic analysis of all associated symptoms considered; Symptoms caused total occupational and social impairment; Benefit of the doubt applied for grant of 100% rating

Full Decision Text

Citation Nr: 22000244
Decision Date: 01/04/22	Archive Date: 01/04/22

DOCKET NO. 19-00 641
DATE: January 4, 2022

ORDER

Entitlement to a 100 percent disability rating for posttraumatic stress disorder (PTSD) with depressive disorder not otherwise specified and alcohol disorder is granted, subject to the laws and regulations regarding monetary payments.

REMANDED

Entitlement to a disability rating in excess of 20 percent for right knee degenerative joint disease patellofemoral joint with recurrent patellar subluxation is remanded.

Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease patellofemoral joint with limitation of flexion is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) from May 21, 2014 to May 20, 2015 on an extraschedular bases is remanded.

FINDING OF FACT

The Veteran's service-connected PTSD has been manifested by symptoms which most closely equate to total occupational and social impairment. 

CONCLUSION OF LAW

The criteria for a 100 percent rating for the Veteran's service-connected PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4.130 Diagnostic Code 9411.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 2002 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) from a decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a March 2021 Board hearing. A transcript of the hearing is of record. 

Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds the issue of entitlement to TDIU was raised by the Veteran in a January 2017 TDIU application; therefore, the Board has jurisdiction over that issue are well.

1. Increased rating for PTSD

The Veteran contends his PTSD is more severe than currently rated. The Veteran's PTSD is currently rated 70 percent from June 3, 2016 and 50 percent prior to June 3, 2016. The Veteran's PTSD is rated under Diagnostic Code 9411. The appellate period for this matter is from May 21, 2014, one year prior to his May 21, 2015 claim for increased rating.  

The Veteran's PTSD is rated under 4.130, Diagnostic Code 9411. 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 50 percent rating is provided 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 provided 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
 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 provided 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 worklike setting); inability to establish and maintain effective relationships.

A 100 percent rating is provided 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. 38 C.F.R. § 4.130, DC 9411.

When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating 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 (a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b).

In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); 38 C.F.R. § 4.126 (a). It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran's symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead, supra. 

In July 2015, the Veteran underwent a VA psychiatric examination. The examiner diagnosed the Veteran with PTSD with depressive disorder. The Veteran stated that at times he would get depressed. The Veteran noted that since he had stopped working things had gotten much better without the stress. The examiner found the Veteran had symptoms of depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; and suicidal ideation. The examiner found the Veteran's symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The examiner observed the Veteran to be unshaven and wearing somewhat dirty clothes. During the examination the Veteran reported he was living with a friend in a house and doing whatever he could to keep his stress level down. The Veteran reported that he went to college for five years, but quit before he graduated. The Veteran stated he had a cooking jobs, but while he worked, he got depressed. The Veteran stated he thought he might hurt others or himself, so he quit his job. The Veteran reported that in August 2014 he quit his job and had a mental breakdown. The Veteran stated that he felt as though he afraid to go back to work because he worked all the time and drank a lot and was always out of money. 

In June 2016, the Veteran underwent another VA psychiatric examination. The examiner diagnosed the Veteran with PTSD, unspecified depressive disorder, and alcohol use disorder. The examiner found the Veteran had symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss
 years, but quit before he graduated. The Veteran stated he had a cooking jobs, but while he worked, he got depressed. The Veteran stated he thought he might hurt others or himself, so he quit his job. The Veteran reported that in August 2014 he quit his job and had a mental breakdown. The Veteran stated that he felt as though he afraid to go back to work because he worked all the time and drank a lot and was always out of money. 

In June 2016, the Veteran underwent another VA psychiatric examination. The examiner diagnosed the Veteran with PTSD, unspecified depressive disorder, and alcohol use disorder. The examiner found the Veteran had symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; 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; and suicidal ideation. The examiner found these symptoms caused occupational and social impairment with reduced reliability and productivity. During the examination, the Veteran reported that he had a fall out with his roommate and was preparing to move out of his apartment. The Veteran stated that he saw his brother every 1 to 2 weeks. The Veteran stated he had made friends at local bars and spent time with other Veterans. The Veteran enjoyed hiking, camping, and snowboarding. The Veteran reported he had not worked for 2 years, since he nearly stabbed a coworker in an argument at work. The examiner observed that the Veteran presented with a clean, casual appearance. The Veteran was cooperative with the evaluation. The examiner noted the Veteran presented with a façade of emotional stability until they discussed his flashbacks. The Veteran had appropriate eye contact; was articulate, with normal rate of speech; appropriate affect; dysphoric mood, which was congruent though content; was logical, goal-directed origination of thought; and there was no evidence of preoccupations, hallucinations, or delusions. 

In July 2016, a fellow serviceman who served with the Veteran submitted a letter. The fellow serviceman observed the Veteran had anger issues, suicidal comments, and alcohol/drug abuse during his first 18 months after returning from war. 

In July 2016, the Veteran submitted a statement that he was placed on suicide watch shortly after a traumatic incident in-service. 

In March 2021, the Veteran testified in a Board hearing. The Veteran stated that he currently did not have a job and that he had not worked for the past 7 years. The Veteran noted that he was not able to hold jobs. The Veteran explained that he had difficulty interacting with people. The Veteran stated he does not "do family relations". He explained that he stopped talking with his parents three years prior. The Veteran stated that in the past he tried to kill his brother. The Veteran stated he had memory issues with remembering names. The Veteran stated he had really bad panic attacks two years prior. The Veteran noted that he called the Veteran Hotline, which resulted in a wellness check visit by two sheriffs. The Veteran stated that he still got panic attacks and that he could not sleep at night. The Veteran stated that he had a couple panic attacks a week. The Veteran stated he also had nightmares and night terrors. The Veteran stated that he had two night terrors in the past week, which resulted in him smashing his head into the wall. The Veteran stated that he attempted suicide when he was 25 shortly after he left service. The Veteran stated that he also struggled with drug and alcohol abuse to self-medicate. The Veteran stated that when he went out to restaurants, he would need to know where all the rooms were and where all the people were. The Veteran stated that he had been single for 10 years and that he could not hold down a relationship with anyone. The Veteran stated that he tried to shower every day, but he had difficulty because he would run out of hot water. The Veteran noted there were times that he lost track, and had not showered for 4 to 8 days. The Veteran further added that he tried to place himself in social situations, such as going to bars. However, he could not engage with the people around him. 

Applying the applicable legal framework to the facts of this case as described above, the Board finds that the criteria for entitlement to a 100 percent schedular rating for service-connected PTSD have been met from May 21, 2015. In this regard the Board notes that the 100 percent rating requires total occupational and social impairment, and there is significant evidence that the Veteran's occupational and social impairment is total, as evidenced by the Veteran's poor relationships with his family members, lack of healthy social outlets, consistent suicidal ideations and the mental health breakdown revolving around his departure from in his job in July 2014. As such, according the Veteran the benefit of the doubt, an award of
 could not engage with the people around him. 

Applying the applicable legal framework to the facts of this case as described above, the Board finds that the criteria for entitlement to a 100 percent schedular rating for service-connected PTSD have been met from May 21, 2015. In this regard the Board notes that the 100 percent rating requires total occupational and social impairment, and there is significant evidence that the Veteran's occupational and social impairment is total, as evidenced by the Veteran's poor relationships with his family members, lack of healthy social outlets, consistent suicidal ideations and the mental health breakdown revolving around his departure from in his job in July 2014. As such, according the Veteran the benefit of the doubt, an award of entitlement to a schedular rating of 100 percent is warranted here. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411.

The Board has assigned a 100 percent disability for the Veteran's PTSD as the date of the claim received, May 21, 2015. Generally, the effective date for an award of increased compensation will be the later of the date of claim or the date entitlement arose. 38 C.F.R. § 3.400 (o)(1). However, the effective date of an award of increased compensation may also be the earliest date as of which it is ascertainable that an increase in disability had occurred, if an application for an increase in compensation is received within one year from such date. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Such increase in severity must occur during the one-year period prior to the claim for increase for an earlier effective date to be assigned. Gaston v. Shinseki, 605 F.3d 979, 98384 (Fed. Cir. 2010). Otherwise, the effective date will be the date of receipt of the claim. 38 C.F.R. § 3.400 (o)(2). In this case, the Board notes that evidence in the record does not indicate that the increase was ascertainable during the one-year period prior to May 2015. Specifically, the evidence in the record indicates that the Veteran had suicidal ideations prior to May 2014. The Board recognizes that the Veteran's reported violence in 2014 is an indication of a total occupational and social impairment, however, the evidence also indicates that the Veteran had long standing suicidal ideations well before May 2014. See VA Mental Health Treatment Records September 2014 (noting the Veteran had a long history suicidal ideation); see also March 2021 Board Testimony (stating that he attempted suicide shortly after leaving service). Suicidal tendencies and violence are both indications of total impairment, and therefore, the date of the increase is not ascertainable for the Board, to the extent of one year prior to his claim. Thus, the Board finds that the 100 percent award must begin the date of the Veteran's claim, May 21, 2015. 

REASONS FOR REMAND

1. Entitlement to a disability rating in excess of 20 percent for right knee degenerative joint disease patellofemoral joint with recurrent patellar subluxation is remanded.

2. Entitlement to a disability rating in excess of 10 percent for a right knee degenerative joint disease with limitation of motion is remanded.

The Veteran contends that his right knee disabilities are more severe than currently rated. Specifically, the Veteran contends that his knees had worsened since he was last examined in 2015.

The Board notes that in December 2018, VA canceled a knee examination for the Veteran due to the Veteran failing to RSVP for his knee examination. Typically, if a Veteran fails to report for a VA examination in conjunction for an increase rating such claim will be denied. 38 C.F.R. § 3.655 (b). However, in this instance, it appears that the Veteran failed to confirm the examination appointment rather than failed to report. Therefore, the Board finds that a contemporaneous examination of the Veteran's right knee disability must be completed prior to any adjudication. However, the Board notes that VA's duty to assist is not a one-way street. If the Veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991). The
 Veteran fails to report for a VA examination in conjunction for an increase rating such claim will be denied. 38 C.F.R. § 3.655 (b). However, in this instance, it appears that the Veteran failed to confirm the examination appointment rather than failed to report. Therefore, the Board finds that a contemporaneous examination of the Veteran's right knee disability must be completed prior to any adjudication. However, the Board notes that VA's duty to assist is not a one-way street. If the Veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991). The Veteran should be advised to follow the instructions provided to him in order undergo a VA examination for his right knee. 

3. Entitlement to a TDIU prior to May 21, 2015

The Veteran currently has a TDIU effective June 3, 2016. The Veteran is herein granted a 100 percent disability rating from May 21, 2015 and therefore any TDIU claim from May 21, 2015 to June 3, 2016 is moot. As noted in above, the Veteran's TDIU claim is linked to the Veteran's claim for increase rating for his PTSD. The appellate period for the Veteran's PTSD claim was May 21, 2014. As such, the claim for a TDIU from May 21, 2014 to May 20, 2015 is still before the Board. 

Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a).

If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran does not meet the schedular requirement for the period of May 21, 2014 to May 20, 2015.

Nevertheless, even if the Veteran does not meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The United States Court of Appeals for Veterans' Claims (Court) recently ruled that if there is a reasonable possibility that a Veteran is unemployed due to service-connected disabilities than the veteran's claim must be referred to the Director of Compensation for extraschedular consideration. See Snyder v. McDonough, No. 19-6707; see also Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). 

Here, the Board finds that there is a reasonable possibility the Veteran's service-connected PTSD caused the Veteran to be unemployable during the applicable period. The Veteran made repeated assertions in his Board testimony, VA examinations, and in his application for TDIU that he left work due to his PTSD. The Veteran noted there was a specific incident leading to him leaving work in July or August 2014. This event included mental break down and threatening a co-worker with violence. The Board finds that the evidence creates a reasonable possibility that the Veteran's PTSD caused his unemployability. Therefore, this matter must be referred to the Director of Compensation for extraschedular consideration for the period between May 21, 2014 and May 20, 2015. 

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disabilities. The examiner should provide a full description
 TDIU that he left work due to his PTSD. The Veteran noted there was a specific incident leading to him leaving work in July or August 2014. This event included mental break down and threatening a co-worker with violence. The Board finds that the evidence creates a reasonable possibility that the Veteran's PTSD caused his unemployability. Therefore, this matter must be referred to the Director of Compensation for extraschedular consideration for the period between May 21, 2014 and May 20, 2015. 

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.  

2.  Refer the Veteran's TDIU claim for the from May 21, 2014 to May 20, 20215 to the Director, Compensation Service, for extraschedular consideration of entitlement to a TDIU under 38 C.F.R. § 4.16 (b). A copy of the Director's decision on this claim must be included in the claims file.

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Robert Batten

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.