Citation Nr: 1625363 Decision Date: 06/23/16 Archive Date: 07/11/16 DOCKET NO. 11-18 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to November 7, 1996, and an initial rating in excess of 50 percent from November 7, 1996, to March 24, 2004, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to March 24, 2004. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD A. Ishizawar, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 24, 1970, to March 26, 1970. He also had active duty for training (ACDUTRA) from April 1970 to August 1970. Thereafter, he had periods of inactive duty for training (INACDUTRA) with the Army Reserve until November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2000 rating decision of the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO) that continued the denial of service connection for PTSD, and also denied service connection for anxiety and a panic disorder, and alcoholism. The Veteran initiated an appeal of that decision, and in an August 2009 decision, the Board granted service connection for PTSD and a major depressive disorder. In a May 2010 rating decision, the RO effectuated the Board's August 2009 decision by granting service connection for PTSD with major depressive disorder, rated 50 percent, effective February 3, 2000 (date of claim to reopen), and 100 percent, effective March 24, 2004 (date of a VA examination). In a June 2010 notice of disagreement (NOD), the Veteran disagreed with both the initial ratings and effective dates assigned by the August 2009 rating decision. A February 2014 Board decision granted an earlier effective date of June 28, 1985, for the grant of service connection for PTSD. The Board also remanded the issues of entitlement to an increased initial rating for the Veteran's PTSD prior to March 24, 2004, and entitlement to TDIU, as inextricably intertwined with the claim for an earlier effective date for PTSD. In a December 2014 rating decision, the RO effectuated the Board's February 2014 decision by granting service connection, effective June 28, 1985. A 10 percent initial rating was assigned from that date, and a 50 percent initial rating was assigned effective November 7, 1996. The 100 percent rating already in effect, effective March 24, 2004, was continued. Entitlement to TDIU prior to March 24, 2004, was denied. The Veteran continues to disagree with the initial ratings assigned for his PTSD prior to March 24, 2004. He also disagrees with the denial of a TDIU rating prior to March 24, 2014. Therefore, those issues remain on appeal before the Board. See also December 2014 supplemental statement of the case. In a February 2016 letter, the Veteran's attorney requested an additional 90 days in which to submit additional evidence. Such a motion was granted in March 2016. See March 2016 letter to the Veteran's attorney. In June 2016, the Veteran's attorney submitted additional evidence and argument with a waiver of initial Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. The most credible evidence pertaining to the period prior to March 24, 2004, supports an evaluation of 100 percent for the Veteran's service-connected PTSD with major depressive disorder. 2. As this decision grants a 100 percent rating for the Veteran's service-connected PTSD, effective June 28, 1985, and it is his only service-connected disability, there is no remaining case or controversy pertaining to his claim for a TDIU rating prior to March 24, 2004. CONCLUSIONS OF LAW 1. Resolving doubt in the Veteran's favor, the criteria for an initial disability rating of 100 percent for PTSD with major depressive disorder prior to March 24, 2004, have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.131, 4.132, Diagnostic Code (DC) 9411 (in effect prior to February 3, 1988); 38 C.F.R. § 4.132, DC 9411 (effective February 3, 1988); 38 C.F.R. §§ 3.102, 4.3, 4.130, DC 9411 (effective November 7, 1996). 2. The claim for entitlement to TDIU, prior to March 24, 2004, is dismissed as moot. 38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 4.16, 19.4, 20.101, 20.202, 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of VA's duty to notify and assist on the matter; any notice defect or duty to assist failure is harmless. Accordingly, the Board will address the merits of the claim. II. Legal Criteria, Factual Background, and Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issues on appeal. A. PTSD Disability evaluations are determined by the application of the 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 practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's PTSD with major depressive disorder has been evaluated under 38 C.F.R. § 4.130, DC 9411, since June 28, 1985. Twice during the timeframe of this appeal, effective February 3, 1988, and then again effective November 7, 1996, VA has revised the criteria for diagnosing and evaluating mental disorders. The Board will evaluate the Veteran's claim under all three sets of schedular criteria in the VA Rating Schedule, including the current regulations, in order to ascertain which version would accord him the highest rating. According to VAOPGCPREC 7-2003 (Nov. 19, 2003), in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the Federal Circuit overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit. Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as the holding in that case provides that, when a statute or regulation changes while a claim is pending before VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. Accordingly, the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. Id. However, none of the above cases or General Counsel Opinions specifically prohibits the application of a prior regulation to the period on or after the effective date of a new regulation. Thus, the rule that the Veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal allows application of the prior versions of the applicable DCs at 38 C.F.R. §§ 4.130 and 4.132 to the period on or after the effective dates of the new regulations. The effective date of any rating assigned under the revised schedular criteria may not be earlier than the effective date of that change; the Board must apply only the earlier version of the regulation for the period prior to the effective date of change. See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g) (West 2014) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue). Initially, the Board notes that 38 C.F.R. § 4.132, DC 9411, as in effect prior to February 3, 1988, provided for a 10 percent disability rating where the service-connected psychoneurotic disorder was manifested by symptoms less than those contemplated by the criteria for a 30 percent disability rating, with emotional tension or other evidence of anxiety productive of moderate social and industrial impairment. A 30 percent disability rating was assigned when there was definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency and reliability levels as to produce considerable functional impairment. A 50 percent disability rating was assigned where the evidence showed that the ability to establish or maintain effective or favorable relationships with people was substantially impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels were so reduced as to result in severe industrial impairment. A 70 percent disability rating was assigned when the ability to establish and maintain effective or favorable relationships with people was seriously impaired. The psychoneurotic symptoms were of such severity and persistence that there was pronounced impairment in the ability to obtain or retain employment. A 100 percent disability rating was assigned when the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; when the individual had totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; and when the individual was demonstrably unable to obtain or retain employment. See 38 C.F.R. § 4.132, DCs 9400 through 9411 (1980). The schedular criteria for rating psychiatric disorders were revised, effective February 3, 1988. See 38 C.F.R. § 4.132, DCs 9400 through 9411 (1988); 53 Fed. Reg. 1441 (Jan 19, 1988). As revised, a 10 percent disability rating required that the Veteran's service-connected psychoneurotic disorder be manifested by symptoms less than those contemplated by the criteria for a 30 percent disability rating, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent disability rating required a definite impairment in the Veteran's ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite functional impairment. A 50 percent disability rating required that the Veteran's ability to establish or maintain effective or favorable relationships with people was considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels were so reduced as to result in considerable industrial impairment. A 70 percent disability rating required that the Veteran's ability to establish and maintain effective or favorable relationships with people was severely impaired. The psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. A 100 percent disability rating required the attitudes of all contacts except the most intimate to be so adversely affected as to result in virtual isolation in the community; totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; or demonstrably unable to obtain or retain employment. See 38 C.F.R. § 4.132, DCs 9400 through 9411 (1988) Note (1) to the General Rating Formula for Psychoneurotic Disorders, as in effect prior to November 7, 1996, provided that social impairment per se would not be used as the sole basis for any specific percentage evaluation, but was of value only in substantiating the degree of disability based on all of the findings. 38 C.F.R. § 4.132 (1995). The terms "considerable" and "severe" in 38 C.F.R. § 4.132 were quantitative in nature. See Hood v. Brown, 4 Vet. App. 301, 303 (1993). VA's Office of General Counsel issued a precedent opinion concluding that "considerable" was to be construed as "rather large in extent or degree." See VAOPGCPREC 9-93. The Board is bound by this interpretation of the term "considerable." See 38 U.S.C.A. § 7104(c). The former criteria cited above for a 100 percent disability rating are separate and independent bases for granting a 100 percent rating. 38 C.F.R. § 4.132, DC 9411; see Johnson v. Brown, 7 Vet. App. 95, 97 (1994). In other words, if the veteran is demonstrably unable to obtain or retain gainful employment, he is entitled to a 100 percent evaluation whether the other criteria have been satisfied. Under the current rating criteria, effective from November 7, 1996, the General Rating Formula for Mental Disorders provides, in pertinent part, that a 50 percent disability rating is assigned for disorders that are manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned for disorders that are manifested by 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 that is 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); or the inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for mental disorders that are productive of 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 himself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; or memory loss for the names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In addition, the Court has determined that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). 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 Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. The Veteran's service-connected PTSD with major depressive disorder is currently assigned a 10 percent initial rating, effective from June 28, 1985, to November 7, 1996; and a 50 percent initial rating from November 7, 1996, to March 24, 2004. [From March 24, 2004, his service-connected PTSD with major depressive disorder has been assigned a 100 percent initial disability rating; therefore, that period is not for consideration herein.] It is the Veteran's contention that the disability picture presented by his service-connected disability on March 24, 2004, is no different than that shown prior to that date. After evaluating the evidence of record, the Board agrees with the Veteran and finds that from June 28, 1985, he is entitled to a 100 percent rating for his service-connected PTSD with major depressive disorder. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.132, DC 9411 (1980), 4.132, DC 9411 (1988), 4.130, DC 9411 (2015). Specifically, the record includes an April 1985 letter from S.L.R., D.S.W., addressed to the Veteran's primary care physician, Dr. M.P.S. She notes that she has been seeing the Veteran for psychotherapy with respect to his anxiety symptoms, and that "[s]ometimes his anxiety symptoms are extreme!" In a June 1985 letter, Dr. M.P.S. notes that the Veteran has a diagnosis of anxiety/depression and hypertension, for which he has been prescribed medication. June 1985 and September 1985 correspondence from Dr. A.L. also notes he has been treating the Veteran since 1984 for "severe anxiety, depression, and hypertension," diagnosed as posttraumatic syndrome due to military service and for which he has been prescribed medication. A September 1985 letter from Dr. R.F.A. notes the Veteran has been under his care and suffers from "a severe anxiety disorder." Dr. R.F.A. stated that the Veteran's experiences in the military might have contributed to his present emotional distress (posttraumatic stress syndrome). On September 1985 VA examination, the Veteran reported suffering from severe anxiety, panic attacks, insomnia, nightmares, depression, guilt, anger, rage, rapid pulse, severe sweating, dizziness, uncontrollable crying, nervousness, severe flashbacks, and loss of memory ever since his separation from service. He noted that his symptoms "turned very severe about 3 years" earlier and that he had seen about 6 doctors, with his symptoms getting worse. He also noted that he had missed work because of his condition and that he feared his wife leaving him. During the mental status evaluation, the Veteran reported being in constant fear of being sent into Vietnam and killed. He continued to have anxiety problems and depression, and sought treatment from a private therapist for several years. About two years earlier, he was listening to a football game when he heard about the marines that were murdered in Lebanon. Since then, he had become more agitated with recurrent dreams of being called back into service and of being killed. He also had difficulty sleeping and his temper had become much worse. When frustrated, he hit his wife and it was noted she had left him on several occasions. The examiner noted the Veteran "ha[d] not been able to work at all in the last couple of years," and that his "family ha[d] been giving him financial aid." He was oriented and did well on formal memory tests. Judgment and insight were moderately impaired. The Veteran reported being depressed. When asked if he had made any suicide attempts, he hesitated for a long time but then said no. He denied auditory and visual hallucinations, and ideas of reference and persecution. Generalized anxiety disorder was diagnosed; his incapacity was noted to be "[s]evere." A July 1988 letter from Dr. M.K. states he has been providing psychiatric care for the Veteran since December 1986. It was noted that the Veteran sought him out for "treatment of severe generalized anxiety, punctuated by classic panic attacks. These occurred out-of-the-blue and included he symptoms of panic, a feeling that blood is rushing to his head, increased sweating, shaking hands, flushed face, seeing spots before his eyes, dizziness, slurred speech (off medication), faintness, a feeling of helplessness, and a feeling that he is going to die." These panic attacks were noted to last several hours or the better part of a day, after which the Veteran experienced "profound fatigue." Dr. M.K. noted further that the Veteran's symptoms "interferred [sic] with his ability to work and ha[d] caused problems with his boss and co-workers, ha[d] caused problems in getting along with his wife, and ha[d] severely stressed his marriage." Dr. M.K. diagnosed PTSD delayed onset, delayed expressed as severe generalized anxiety and periodic severe panic attacks, and stated that the Veteran's prognosis was "guarded." He stated the Veteran functioned "poorly at work and within his marriage" and was "sustained as well as possible" on medication. In a February 1989 letter, Dr. M.K. stated that the Veteran was still under his psychiatric care, and that he still suffered from "generalized anxiety, panic attacks, some agoraphobic elements, and marked inhibition of ability to socialize and work." It was noted that these symptoms were present "despite continued psychotherapy and pharmacotherapy," and that the Veteran was "still disabled because of his [PTSD]." Dr. M.K. stated the Veteran was "unable to work productively and his socialization [was] extremely limited." In a December 1989 letter addressed to the VA Medical Center, B.M.W., PhD, a licensed psychologist, stated that the Veteran was currently under his treatment for PTSD and panic disorder with agoraphobia, and that due to those concurrent conditions, the Veteran would not be able to attend a hearing at the VA Medical Center at that time. According to a January 2015 letter from the Records Department at Little Hill-Alina Lodge, from May 9, 1992, to October 11, 1992, the Veteran was admitted to that facility. There was no other information available as records are only maintained for ten years. Little Hill-Alina Lodge is operated by the Little Hill Foundation for the Rehabilitation of Alcoholics, Inc. On February 2001 VA examination, the Veteran reported having symptoms of PTSD, which the examiner described as "moderate severity, occurring throughout the year[s] without any remission." He stated he thought about this problems in the military every day; had distressing nightmares about those traumatic events many nights a week, often awakening him in agitation and distress; had intense distress at things that brought back memories of his traumatic events in service; avoided certain activities and places that might bring back memories of the in-service trauma; had greatly diminished interest in significant activities and often felt like doing nothing; felt alienated from others; reported having a restricted range of affect, as he had trouble showing affection and being close to other family members; reported having difficulty both falling and staying asleep; had frequent problems with excessive irritability and losing his temper (he noted he had lost his temper with people at work, even getting into shoving matches with his boss (who is his brother)); had difficulty concentrating; displayed marked symptoms of hypervigilance; and reported having exaggerated startled responses. The Veteran also reported having symptoms of a major depressive disorder with "no interest" in doing things and not getting much pleasure out of many activities. He noted that he had a lot of problems with fatigue and lack of energy, and with concentrating, focusing, and making decisions. Regarding his occupational history, the Veteran reported that he had been working in a retail store as a sales clerk since 1992. His brother was employer and the examiner stated "this may have helped for him to maintain the job." The Veteran noted he had problems at work, being overly sensitive, getting irritated too easily, and getting into arguments with people there, also too easily. He sometimes also had to miss work due to his fatigue and depressed mood. The examiner opined that, overall, the Veteran had "intermittent problems performing his job, secondary to his psychiatric problems. He also ha[d] intermittent problems getting along with people, secondary to his PTSD and depression." Regarding his social history, the Veteran reported that in recent years, his relationship with his spouse was "okay," but they had a history of serious problems with his wife having filed restraining orders against him in the past and also having filed for divorce in the past. The Veteran noted they had separated for a while, but reunited in 1995. He stated he was still overly irritable and too easily angered by her and by their children. He did not see his friends often and preferred to stay by himself. The examiner opined that the Veteran had "intermittent difficulties keeping up with his relationships due to problems with irritability as well as depressed mood." On mental status examination, the Veteran was dressed appropriately. He was apprehensive but cooperative throughout the evaluation. He was calm in his motor activity, but his mood was anxious and depressed and his affect was labile. His speech was normal; and there were no impairments in his perceptions or thought process. His thought content, however, was marred by persistent re-experiencing of trauma that occurred while he was in the Army. He denied any present or past suicidal ideation/attempts, and denied any problems with homicidal ideation. But, he had chronic problems with assaultive behavior, admitting that he got into a fight just yesterday. He stated this occurred at work, where he got into an argument with his brother (his boss at work) and ended up having a shoving match in front of other people. The Veteran was oriented to person, place, and time, but his concentration and short-term memory were mildly impaired. His judgment was also compromised by stress and he had moderate problems with anger dyscontrol. He had limited insight into his psychiatric problems. Based on the foregoing, the examiner diagnosed chronic PTSD and recurrent, moderate major depressive disorder. A Global Assessment Functioning (GAF) score of 55 was assigned for "[m]oderately serious PTSD, moderate symptoms of depression, few friends, and conflicts with co-workers." On March 24, 2004 VA examination, the Veteran reported difficulty sleeping despite being taking medication. He also enumerated a variety of complaints similar to those reported at the time of prior VA examinations, and noted that he had tried to return to work but could not be with people. He also could not be alone because he was scared and angry when alone, but if people were home he was also angry and scared. He reported significant problems with irritability and losing his temper; he also described having exaggerated startled responses. Regarding his occupational history, the Veteran stayed that although he had maintained employment from the time of his separation from service to the present, it was "within the context of his working for family members." He noted that he had worked for his brother for about nine years in a retail store, but this eventually ended because his brother said he could not near anyone because he showed his anger with a customer. His brother described the Veteran as "walking around with box cutters, scissors, scaring customers away and generally being menacing." His brother then put him in the back of the store, but the Veteran was still angry and got into fights. The Veteran denied missing work, but acknowledged his various interpersonal difficulties. He also noted that whenever he heard sirens, he would go, "Oh my God," and that his brother would tell him he was overreacting. There were several periods where his brother would stop working for his brother, but then his brother would take him back. For the past two years, the Veteran had been working for a cousin but he had similar interpersonal difficulties and his cousin told him to stop coming to his store because he got into fights and should not be around customers. At the examination, the Veteran showed that in the last year, he had earned a total of $285, basically working a few days here and there for relatives. Regarding his psychosocial history, the Veteran reported that after marrying his wife in 1978, they separated three to four times, with the most recent incident occurring in 1991 when she filed for divorce and had a restraining order against him. He was arrested and jailed for domestic violence because he would cut up clothes and scare the children. This happened a couple of times until he eventually got help. The Veteran noted he also had a longstanding history of alcohol abuse and used to get increasingly violent when he drank, but that he also got help for that because he wanted to reconcile with his wife. The Veteran stated that despite his abstinence, he still had significant difficulties interacting with his wife and children. He reported that his children thought he was crazy. He spent most of his time on the computer or watching television, but would sometimes go to one of the stores owned by his family members to hang out a few times a week. He also tried to help his wife with paperwork, but functioned better when he was doing things by himself than when around others. On mental status examination, the Veteran had a slightly disheveled appearance and presented as extremely anxious. He did not maintain eye contact consistently throughout the evaluation and presented in a somewhat traumatic fashion, gesturing wildly when talking about things. He cried when he talked about in-service traumatic events and both reported and exhibited memory problems. He described significant sleep disturbances, including nightmares, and stated that at night, he displayed hypervigilant behaviors by checking locks on doors and making sure no one else was in the house. He denied auditory hallucinations, but sated that he will occasionally feel like there is someone out there when he goes outside to throw away garbage. He described himself as self-protective of his wife and children, but the examiner stated the example he gave sounded more like paranoia. The examiner noted the Veteran had some difficulty in providing a coherent story of his functioning in various domains throughout the evaluation, and it was not fully clear whether this was vagueness in his thinking, reflecting a subtle thought disturbance or not. Based on the foregoing, the examiner diagnosed anxiety disorder and alcohol abuse in full sustained remission. A GAF score of 45-48 was assigned. The examiner noted further that the Veteran had "had significant psychiatric dysfunction dating back as early as 1971 . . . with treatment over the past 30 years, with various anxiolytic medications, and antidepressants." He also stated, "This individual as stated earlier has severe chronic psychiatric dysfunction since at least 1971, that has significantly impacted on his occupational and social functioning. Consistent across all of the evaluations has been his severe level of anxiety." In a January 2016 statement (received by VA in June 2016), the Veteran's spouse described how after meeting the Veteran in 1977 and marrying in 1978, he went from being emotional to having emotional outbursts. She noted, in particular, that in 1980 his behavior worsened and he began to drink excessively, which in turn caused him to become very violent and abusive. From 1983 to 1984, his drinking became worse and "non-stop." Although he worked, it was in his family retail business until his family eventually told him to stay home and they would take care of him financially. When asked why, the Veteran's family told her he was anti-social and hurting the business. The Veteran's spouse also noted that as the Veteran became more violent, he would physically abuse her and break things. The police were frequently called and they even separated at one point. She feared for the safety of herself and her children and on three occasions, went to the court to get a restraining order against him. Eventually he did seek in-patient rehabilitation and counseling for 6 months. When he left the in-patient treatment, they stayed separated and she filed for divorce, but the Veteran went to Alcoholics Anonymous and stayed sober so she decided to give him another chance. The Veteran's spouse noted, however, that he still does not go to work, go to dinners, or make friends. He avoids crowds and he lives in constant fear of his safety. He has two locks on the door and checks them hourly. She stated that even in the present they practically live separate lives. To support her statements, the Veteran's spouse submitted a copy of a final order from the Monmouth County Superior Court showing that in September 1990, she requested the dissolution of a protective restraining order against the Veteran. The Veteran's driving record report was also submitted to show the number of times he was cited for operating under the influence prior to March 2004. In a March 2016 private opinion (received by the Board in June 2016), Dr. M.L.C., a psychiatrist, opined that "there [was] absolutely no evidence that [the Veteran had] had the capacity to function in a serious and meaningful work environment since even before 1985, instead relying on the understanding and generosity of his family members to get by." Dr. M.L.C. reviewed the entirety of the Veteran's medical records and stated, "When comparing the intensity of his symptoms in June 28, 1985 [the date of his award of service connection for PTSD with major depressive disorder] to the symptomatology in March 24, 2004 when VA has awarded him a 100% rating, there is no indication that the symptoms in 1985 were any less severe and, in fact, based on the description of his behaviors, by his wife, he was even more profoundly ill during that timeframe." Dr M.L.C. acknowledged that prior to June 1999, the Veteran was earning income above the poverty line but explained that the this was only possible because he was employed by family members who provided him with a salary even though he was not actually able to work full-time in the family business. Dr. M.L.C. stated, "This does not represent a meaningful or gainful employment and would be considered, from an economic perspective, a gift given his family's support when he was not actively working, and not a salary or wage." In considering the evidence of record under the laws and regulations in effect prior to March 24, 2004, the Board concludes that for that period of the appeal, the Veteran's service-connected PTSD warrants an increased rating of 100 percent. The 100 percent rating is the maximum rating available under 38 C.F.R. §§ 4.132 (1988), 4.130 (2015). The competent evidence of record, as outline above, shows that from June 28, 1985, to March 24, 2004, the Veteran's service-connected PTSD with major depressive disorder was characterized primarily by severe anxiety, panic attacks, insomnia, nightmares, flashbacks, hypervigilance, impairment in memory, some agoraphobic behaviors, excessive irritability, emotional outbursts, and violent tendencies. Such symptoms resulted in the attitudes of all of the Veteran's contacts to be so adversely affected as to result in his virtual isolation in the community and a demonstrable inability to obtain or retain employment prior to November 7, 1996. Those symptoms also resulted in total occupational and social impairment from that date (to March 24, 2004). For example, in a September 1985 VA examination, it was noted that the Veteran had not been able to work in the last couple of years, and that his family was giving him financial aid. A July 1988 letter from his treating psychiatrist, Dr. M.K., also noted that the Veteran's psychiatric symptoms were interfering with his ability to work and had caused problems between him, his boss, his co-workers, and wife. Dr. M.K. provided a similar statement in February 1989, when he stated the Veteran was unable to work productively and his socialization was extremely limited. In December 1989, it was even noted that the Veteran was unable to report to the VA Medical Center for a hearing because of his PTSD and panic disorder with agoraphobia. Finally, on February 2001 VA examination, it was noted that although the Veteran had been able to maintain employment since 1992, he was employed by his brother which "may have helped for him to maintain the job." It was also noted that he argued frequently with his brother and others at his workplace, had problems getting along with others, including his family. As opined by Dr. M.L.C. in a March 2016 private opinion, such evidence tends to show that the Veteran's psychiatric symptoms from June 28, 1985, to March 24, 2004, were equally severe as those demonstrated during his March 24, 2004 VA examination (and since then). Furthermore, the evidence also supports a finding that although the Veteran was employed prior to March 24, 2004, and may have even, at times, been earning an income above the poverty threshold for one person, such employment was marginal at best, given how he was employed by family members who were able to support him financially. In conclusion, it is the Board's opinion that June 28, 1985 (and not March 24, 2004), is the proper date for the assignment of a 100 percent (maximum) rating for the Veteran's service-connected PTSD with major depressive disorder. B. TDIU The United States Court of Appeals for Veterans Claims (Court) has held that a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109 (2009) (an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). A TDIU is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). Prior to 2008, the Board treated a 100 percent schedular rating as subsuming the need for TDIU consideration on the basis that the 100 percent schedular rating delivered more benefits than could be obtained by a TDIU rating. The Board's treatment in this regard stemmed primarily from a June 1999 opinion of VA's General Counsel (GC), which held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See VA O.G.C. Prec. Op. No. 6-99; Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In 2008, however, the Court issued Bradley v. Peake, 22 Vet. App. 280 (2008), which is contrary to GC's previously noted precedent opinion, since withdrawn in response to Bradley. According to the Bradley Court, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC ) under 38 U.S.C.A. § 1114(s). The Court reasoned that it might therefore benefit the Veteran to obtain or retain a TDIU rating even where a 100 percent schedular rating is already in effect. Id. at 293. SMC is payable at the (s) rate when a veteran has a single service-connected disability rated as 100 percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s). These benefits are not available when the 100 percent disability rating is based on multiple disabilities, none of which is rated 100 percent disabling, or which arise from a single etiology or accident. Buie v. Shinseki, 24 Vet. App. 242, 249-50 (2010); Bradley, 22 Vet. App. at 290-91. The above decision grants a 100 percent (maximum) rating for the Veteran's PTSD, effective June 28, 1985. As June 28, 1985, is the date the Veteran's award of service connection begins, there is no earlier period for which he may be awarded a TDIU rating. PTSD is also the Veteran's only service-connected disability; therefore, the concerns of the Bradley Court are not for consideration herein (i.e., it is not shown that he has a service-connected disability or disabilities independently ratable at 60 percent). Based on the foregoing, the Board finds that there is no remaining case or controversy pertaining to the Veteran's claim for entitlement to a TDIU rating, prior to March 24, 2004. Accordingly, the appeal will be dismissed as moot. ORDER An initial rating of 100 percent, prior to March 24, 2004, for PTSD, is granted, subject to the laws and regulations governing the payment of monetary benefits. The appeal seeking entitlement to TDIU, prior to March 24, 2004, is dismissed. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs