Citation Nr: 1752012 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-20 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to October 31, 2003. 2. Entitlement to an initial evaluation in excess of 50 percent for PTSD from October 31, 2003. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran had active service from August 1975 to July 1979. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 and April 2010 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This matter was most recently before the Board in October 2016 when it was remanded for additional development. Since then, the development has been undertaken and the matter is now back before the Board with a brief and additional evidence submitted on behalf of the Veteran by his attorney. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's PTSD has been productive of at least serious and severe impairment in his ability to establish or maintain effective or favorable relationships with people, with psychoneurotic symptoms of such severity and persistence that there was pronounced and serious impairment in the ability to obtain or retain employment resulting in the Veteran being unable to secure or follow a substantially gainful occupation. 2. The Veteran is granted a 100 percent disability rating for PTSD, and his unemployability is not solely the result of his other service-connected disabilities. CONCLUSIONS OF LAW 1. For the entire period on appeal the criteria for a 100 percent rating for PTSD have been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.16(c), 4.126, 4.129, 4.130, 4.132, Diagnostic Code 9411 (1991, 2017). 2. The appeal for entitlement to TDIU is moot and the claim is dismissed. 38 U.S.C.A.§ 7105 (d)(5); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. POSTTRAUMATIC STRESS DISORDER RATING The Board finds that for the entire period on appeal the Veteran is entitled to a 100 percent schedular rating under the more favorable criteria in effect prior to November 7, 1996 as his PTSD has been characterized by serious and severe impairment in his ability to establish or maintain effective or favorable relationships with people and has resulted in the Veteran being unable to secure or follow a substantially gainful occupation. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The Board has previously held in this case that the Veteran's claim had been pending since July 1991; therefore the Board considers the Veteran's disability under the relevant rating in effect for the entire period on appeal. In that regard, the Board notes that the schedular rating criteria for the Veteran's disability were amended in 1996. Diagnostic Code 9411 provided that a 30 percent evaluation required definite impairment in the ability to establish or maintain effective or wholesome relationships with people, and psychoneurotic symptoms that result in such reduction in flexibility, efficiency, and reliability levels as to produce definite social impairment. The term "definite" has been defined as "distinct, unambiguous, and moderately large in degree," representing a degree of social and industrial inadaptability that was "more than moderate but less than rather large." VAOPGCPREC 9-93, 59 Fed. Reg. 4752 (1994); see also Hood v. Brown, 4 Vet. App. 301 (1993). A 50 percent evaluation required considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and psychoneurotic symptoms that result in such reduction in reliability, flexibility, and efficiency levels as to produce considerable industrial impairment. A 70 percent evaluation required severe impairment in the ability to establish and maintain effective or favorable relationships with people; the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation required virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment. Further, the Court held that these criteria provide three independent bases for granting a 100 percent disability evaluation. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994). In addition, VA promulgated 38 C.F.R. § 4.16(c), effective March 1, 1989, which stated that in cases where a mental disorder was assigned a 70 percent evaluation, and such mental disorder precluded a Veteran from securing or following a substantially gainful occupation, in such cases, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. See 54 Fed. Reg. 4280-01 (Jan. 30, 1989). 38 C.F.R. § 4.16(c) (1996) was repealed when the revised criteria for rating psychiatric disabilities became effective on November 7, 1996. 61 Fed. Reg. 52695 (Oct. 8, 1996). Examining these criteria in connection with the Veteran's disability, the Board finds that the Veteran is entitled to the 100 percent schedular rating pursuant to 38 C.F.R. § 4.16(c) as his PTSD merits at least the 70 percent evaluation and it precludes him from securing or following a substantially gainful occupation. Specifically, the Veteran's records show homicidal and suicidal threats beginning in 1991, as well as continuous VA medical record notations of inability to get along with others, detachment, angry outbursts, avoiding others, an inability to establish and maintain effective relationship, and difficulty in establishing and maintaining effective work and social relationships. See generally March 2017 VA Medical Examination (providing historical overview of the Veteran's symptoms); see also Private Medical and Vocational Opinion from C.S. (providing further review of records). Both the private vocational opinion and the most recent VA examination indicate that the Veteran's PTSD has a moderate to severe impact on his ability to function in an employment setting. Id. The vocational expert report explicitly concludes that the Veteran would be precluded from securing employment. Id. Together, these factors indicate that the Veteran has severe impairment in the ability to establish and maintain effective or favorable relationships with people and that the psychoneurotic symptoms are of such severity and persistence that the Veteran is precluded from securing substantially gainful occupation. Accordingly, under the rating criteria in effect prior to November 7, 1996 the Veteran should be rated a 100 percent schedular rating as he meets at least the criteria for the 70 percent rating and his disability has the requisite impact on employment. Consequently, the Board need not consider the additional basis under the former criteria for a 100 percent rating or whether the Veteran could obtain a 100 percent rating under the new criteria because the Board already awards 100 percent maximum schedular rating. The Board notes that the Veteran's attorney has contended that the Veteran be rated at a total extraschedular rating from November 7, 1996, however, the 100 percent schedular rating for the entire period on appeal is equally, if not more favorable. Accordingly the Board will award the initial rating of 100 percent and will not consider whether the same rating could be awarded on an extraschedular basis. II. TOTAL DISABILITY RATING BASED ON INDIVIDUAL UNEMPLOYABILITY As a result of this Board decision, the Veteran has been granted an initial schedular rating of 100 percent for his PTSD, thereby mooting his TDIU claim since claim for TDIU is not based upon another service-connected disability that would solely give rise to the Veteran's employment difficulties. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. As is potentially relevant here, VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); See also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). However, such a scenario is not present here, since the Veteran's PTSD is a major contributing, if not primary factor, for the Veteran's unemployability. Consequently, the other service-connected disabilities do not individually form the sole basis for an award of TDIU. Therefore, the issue of entitlement to a TDIU is moot. ORDER Entitlement to a 100 percent schedular rating for PTSD is granted. The issue of entitlement to a TDIU is moot, and is therefore dismissed. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs