Case A22024328

KEITH W. ALLEN · 2022 · Case ID: A22024328

GRANTED

Summary

The Veteran, who served from May 1966 to May 1968, appeals the denial of an increased disability rating for his service-connected posttraumatic stress disorder (PTSD). The Board vacated its prior decision denying a higher rating and is now readjudicating the claim based on additional evidence submitted by the Veteran's attorney. The primary medical evidence includes VA mental status examinations from June 2019 and March 2021, and a July 2022 DBQ and mental health assessment. The Board noted that while the Veteran's current PTSD symptoms cause occupational and social impairment, the evidence is varied regarding the precise rating level. However, the Board found that the Veteran consistently endorsed suicidal ideation throughout the appeal period, which, in conjunction with other evidence such as irritable behavior, angry outbursts, poor sleep, nightmares, hospitalization for anxiety and depression, and worsening depressive symptoms, warranted an increased rating. The Board found the July 2022 assessment particularly compelling, indicating depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, motivation disturbances, difficulty with relationships and adapting to stressful circumstances, suicidal ideation, neglect of personal hygiene, and intermittent inability to perform activities of daily living. Applying the benefit of the doubt and considering the totality of the evidence, the Board found that the Veteran's symptoms and resulting impairment met the criteria for a 70 percent rating, though not the 100 percent rating. Service connection for PTSD is granted at 70 percent.

Special Benefit

TDIU

Docket No.

220419-238044

Full Decision Text

Citation Nr: A22024328
Decision Date: 11/30/22 Archive Date: 11/30/22

DOCKET NO. 220419-238044
DATE: November 30, 2022

ORDER

A higher 70 percent rating, though no greater, is granted for service-connected posttraumatic stress disorder (PTSD), subject to the statutes and regulations governing the payment of compensation.

FINDING OF FACT

The Veteran's PTSD causes what amounts to occupational and social impairment with deficiencies in most areas though not total occupational and social impairment.

CONCLUSION OF LAW

The criteria are met for entitlement to a higher 70 percent disability rating, though no greater, for the service-connected PTSD. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126-4.130, Diagnostic Code (DC/Code) 9411.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1966 to May 1968.

As the Board recently acknowledged on November 17, 2022, when VACATING a prior decision denying an initial rating higher than 30 percent for the Veteran's PTSD, he had submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)) on April 19, 2022, timely appealing an April 2021 decision by the local Regional Office (RO) granting service connection for his PTSD but denying any higher initial rating for it and selecting the "Evidence Submission" option without a Board hearing. See 38 C.F.R. § 20.202. As such, the Board's consideration of his claim is limited to the evidence of record at the time of the April 2021 AMA rating decision that he has appealed and any additional evidence submitted with his April 19, 2022, VA Form 10182 (NOD) or within the permissible 90-day "grace period" following his election on that VA Form 10182 of the evidence submission option, so until July 19, 2022.

In August 2022, the Veteran's attorney filed a MOTION TO VACATE the Board's July 26, 2022, decision citing the timely submission of supporting evidence under the Appeal Modernization Act's (AMA's) Evidence Submission docket option that was not, in turn, considered by this Board in denying the claim. See 38 C.F.R. § 20.303. The Board sees this supporting evidence was submitted on July 18, 2022, and therefore within the timeframe permitted, however, it was not in turn uploaded to the Veteran's claims file for consideration until after the Board's July 26, 2022, decision. Thus, this Board did not have opportunity to consider this additional evidence when adjudicating the claim. Consequently, on November 17, 2022, the Board vacated its July 26, 2022, decision and the claim is now being readjudicated in this decision and with consideration of this additional evidence mentioned.

As another preliminary matter, when electing the evidence-submission option on his April 2022 VA Form 10182 (AMA NOD), the Veteran additionally raised the issue of "entitlement to individual unemployability [as] inferred from the increased evaluation appeal for PTSD". See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). But this claim was not earlier raised, even reasonably, at the time of the RO's (Agency of Original Jurisdiction's (AOJ's)) initial rating decision at issue since at that time there was nothing in the record suggesting the Veteran was unemployable (unable to obtain and maintain a substantially gainful job) because of his PTSD. See Edwards v. McDonough, No. 20-4845, 2021 U.S. App. Vet. Claims LEXIS 815, (Vet. App. May 5, 2021). Accordingly, this claim for a total disability rating based on individual unemployability (TDIU) is not considered part and parcel of his existing claim for an increased rating for his PTSD. If he and his attorney still want to pursue this additional claim, they are encouraged to submit to the RO (AOJ) an application for this benefit (VA Form 21-8940).

Turning now to the propriety of the initial rating for the PTSD, disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating
App. Vet. Claims LEXIS 815, (Vet. App. May 5, 2021). Accordingly, this claim for a total disability rating based on individual unemployability (TDIU) is not considered part and parcel of his existing claim for an increased rating for his PTSD. If he and his attorney still want to pursue this additional claim, they are encouraged to submit to the RO (AOJ) an application for this benefit (VA Form 21-8940).

Turning now to the propriety of the initial rating for the PTSD, disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 active military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination will be resolved in the claimant's favor. 38 C.F.R. § 4.3.

The Veteran's PTSD is currently assigned a 30 percent disability rating under the General Rating Formula for Mental Disorders, effective from October 23, 2018. 38 C.F.R. § 4.130, DC 9411. But for reasons and bases that will be discussed, the Board finds that a higher 70 percent rating, though no greater, is warranted for the entire review period under consideration primarily based on the additional evidence submitted causing the Board to VACATE its prior decision conversely denying this claim.

Under the General Rating Formula for Mental Disorders, the criteria for a 30 percent rating are 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).

The criteria for a 50 percent rating are 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; and difficulty in establishing and maintaining effective work and social relationships.

The criteria for a 70 percent rating are 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); and inability to establish and maintain effective relationships.

The criteria for a 100 percent rating are 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; and memory loss for names of close relatives, own occupation or own name.

See 38 C.F.R. § 4.130, DC 9411.

The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, rather, serve as mere examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Furthermore, as the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) explained, evaluation under § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411.

Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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 bearing on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a).

Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126(b). Instead, it is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2.

All that said, at the outset the Board notes that, during the pendency of this appeal, the principal medical evidence material to the Veteran's claim for an increased rating for his PTSD is contained in the reports of his June 2019 and March 2021 VA mental status examinations, as well as in the July 2022 Dr. K.F.B. Disability Benefits Questionnaire (DBQ) and mental health assessment. And, to reiterate, based on this collective body of evidence, including especially that most recent July 2022 assessment, the Board finds that a higher 70 percent rating though no greater is warranted for the entire period on appeal.

The medical evidence of record is varied as to whether the Veteran's PTSD symptoms and consequent social and occupational impairment more nearly approximate what is contemplated by a 30 versus 50 or even higher 70 percent disability rating. Significantly, however, throughout the appeal period, he has consistently endorsed suicidal ideation. In this circumstance, he is given the benefit of the doubt and the higher rather than lower rating assigned, so a 70 percent rating rather than lesser 30 or 50 percent rating. 38 C.F.R. §§ 4.3, 4.7.

When determining the appropriate rating for a service-connected mental disorder, VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability, quantifies the level of occupational and social impairment caused by those symptoms, and assigns an evaluation that most nearly approximates the level of occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). In Bankhead, the Court held that the mere presence of suicidal ideation, alone, may cause occupational and social impairment with deficiencies in most areas (i.e., to warrant assigning a 70 percent disability rating under 38 C.F.R. § 4.130). See Bankhead, 29 Vet. App. at 20. In other words, the Court clarified there need not be actual "intent" or "plan" to commit suicide since even thoughts of it suffice. That method of analysis amounted to erroneously grafting risk of self-harm onto the symptom of suicidal ideation by requiring suicidal "intent" or "plan."

. Shulkin, 29 Vet. App. 10, 22 (2017). In Bankhead, the Court held that the mere presence of suicidal ideation, alone, may cause occupational and social impairment with deficiencies in most areas (i.e., to warrant assigning a 70 percent disability rating under 38 C.F.R. § 4.130). See Bankhead, 29 Vet. App. at 20. In other words, the Court clarified there need not be actual "intent" or "plan" to commit suicide since even thoughts of it suffice. That method of analysis amounted to erroneously grafting risk of self-harm onto the symptom of suicidal ideation by requiring suicidal "intent" or "plan."

Furthermore, the Board finds that the evidence reflects that the Veteran's occupational and social impairment is more severe than the currently assigned 30 percent disability rating contemplates.

Although the June 2019 and March 2021 VA examiners surmised the Veteran's PTSD symptoms cause occupational and social impairment due to just relatively mild or transient symptoms, the March 2021 VA examining clinician contrarily observed the Veteran has irritable behavior and angry outbursts with little or no provocation typically expressed as verbal or physical aggression towards people or objects. He also reported poor sleep, indeed, waking as often as at least 2-3 times each night with recurrent nightmares.

Aside from that, the Veteran's VA treatment records show that during that time he was hospitalized for anxiety and depression and experienced suicidal ideation, increased irritability, and thoughts of harming others. See, e.g., July 2018 VA Treatment Record; August 2018 VA Treatment Record (Veteran reports having passive suicidal ideation, but denied any then current plans; however, if opportunity arises, he may do something). An October 2019 VA Treatment Record additionally shows that his prescribed medications resultantly were increased due to worsening depressive symptoms. Also significantly, he again endorsed suicidal ideation during his July 2019 VA examination, stating that he had thoughts of harming himself as well as doing bodily harm to other people.

Moreover, the July 2022 Dr. K.F.B. DBQ also shows that the Veteran has depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, suicidal ideation, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living (ADLs), including maintenance of even minimal personal hygiene.

As such, when considering the extent of the Veteran's symptoms and consequent occupational and social impairment, irrespective of whether specifically listed in the rating criteria, he has the required deficiencies in most areas to warrant increasing his rating from 30 to 70 percent. He has not, however, had the total occupational and social impairment required for an even higher 100 percent schedular rating. His speech has not been intermittently illogical, obscure, or irrelevant. He has not had spatial disorientation. He has not had inability to maintain effective relationships (meaning more than is contemplated by his now higher 70 percent rating). He has not had gross impairment in thought processes or communication. He has not had persistent delusions or hallucinations. He has not had grossly inappropriate behavior, disorientation to time or place, or memory loss for names of close relatives, his own occupation or own name. He also has not had other symptoms equating to this greater level of impairment.

Although Dr. K.F.B. noted the Veteran exhibits intermittent inability to perform ADLs, including maintenance of minimal personal hygiene, on balance, the Board does not find that a single symptom listed in the criteria for a 100 percent rating is sufficient to support an increase to this even greater level, especially given the overall picture of social and occupational impairment.

In making this determination, the Board has considered the Veteran's belief that his symptoms are of such severity as to warrant an even higher rating for the period on appeal. See McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (the Board is required to assess the competency and credibility, and therefore probative weight, of all relevant evidence). However, disability ratings are determined by the application of a schedule of ratings that, as already mentioned, is based on the average impairment of earning capacity including as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which this disability is evaluated, are more probative than his personal assessment of the severity of his disability. The examinations also considered his competent (subjective) statements regarding the severity of his disability, so took them into account. Furthermore, the higher 70 percent rating being granted in this decision
Vet. App. 319, 325 (2007) (the Board is required to assess the competency and credibility, and therefore probative weight, of all relevant evidence). However, disability ratings are determined by the application of a schedule of ratings that, as already mentioned, is based on the average impairment of earning capacity including as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which this disability is evaluated, are more probative than his personal assessment of the severity of his disability. The examinations also considered his competent (subjective) statements regarding the severity of his disability, so took them into account. Furthermore, the higher 70 percent rating being granted in this decision accounts for the symptoms that he reported experiencing during the time period at issue.

Accordingly, when resolving all reasonable doubt in his favor, the Board finds that a higher 70 percent rating, though no greater, is warranted for the Veteran's PTSD for the entire period on appeal.

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Mukherjee, C.

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.

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