Citation Nr: 1752850 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-38 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability evaluation in excess of 70 percent for the Veteran's posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran had active duty from November 1974 to February 1976. This appeal is before the Board of Veterans' Appeals (Board) on appeal from a July 2009rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In a September 2010 VA Form 9, Appeal to the Board, the Veteran requested a Board Videoconference hearing. However, in June 2017, the Veteran withdrew her hearing request in writing. Accordingly, the Board considers her request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(d), (e). This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. The Veteran's PTSD is productive of total occupational and social impairment. 2. The Veteran's request for TDIU is based solely on her one service-connected disability, PTSD, which is now rated at 100 percent. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 100 percent for PTSD have been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The grant of a 100 percent rating for PTSD renders moot the appeal for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION This decision is a total grant of the benefits sought on appeal, and any error related to the Veterans Claims Assistance Act (VCAA) is moot. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Disability Ratings VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If there is disagreement with the initial rating assigned following a grant of service connection (i.e., a higher initial rating claim), separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's service-connected PTSD has been evaluated as 70 percent disabling since May 2009, when the claim for increase was filed, exclusive of two temporary 100 percent evaluations for hospitalizations, under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairment(s). See 38 C.F.R. § 4.130, DC 9411. The General Rating Formula is as follows: A 100 percent rating is assigned 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. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 50 percent rating is assigned 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM 5 (American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013)). In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Court of Appeals for the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. In November 2008 the Veteran was hospitalized for one week after being admitted for suicidal ideation. During the Veteran's June 2009 VA medical examination, the examiner diagnosed the Veteran with PTSD, major depressive disorder, and alcohol dependence. She reported seventy unscheduled absences at work. She said that she was supposed to work five days per week but was barely able to work three days per week. She noted being suicidal sometimes. She had panic attacks once or twice per week. She had distressing nightmares and didn't socially go out in public. She reported having one friend who did not live near her but she talked to sometimes on the phone. She reported a strained relationship with her husband and sister who lived with her. She reported that her children visited but not when she was drinking or in a "mood." She reported having low energy, a bad memory, and chronic sleep problems. She reported hypervigilance and having a deadbolt on her bedroom door. The examiner opined that the Veteran's psychiatric disorders had a serious impairment on her social and occupational functioning. The examiner also opined that the Veteran's major depressive disorder was related to her PTSD. The Veteran sought intermittent group and individual therapy support from VA. The Veteran was afforded another VA medical examination in December 2015. The examiner diagnosed the Veteran with PTSD, persistent depressive disorder. The examiner stated that it was not possible to differentiate what symptoms were attributable to each disorder. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas. The Veteran was no longer working, as she had retired in 2009. The Veteran reported depressed mood, anxiety, panic attacks weekly or less often, near continuous panic or depression, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. The Veteran was hospitalized for alcohol treatment from September to October 2016. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but such would not materially assist the Board in this determination. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52 (1993); see also Massey v. Brown, 7 Vet. App. 204 (1994). The record indicates that while the Veteran's symptoms periodically vary, and while they do not meet all specified criteria for a 100 percent rating, they need not in order for the benefit to be granted. The Veteran has frequent periods of suicidal ideation (for which hospitalization has been required), does not maintain social relationships, has persistent depression, and feels distance from her family. Given this finding, the Board will grant a 100 percent rating for the entirety of the rating period under the benefit-of-the-doubt doctrine. TDIU A TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total (less than 100 percent). 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or 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). Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran is not seeking special monthly compensation at the housebound rate, and the record does not otherwise reasonably raise that matter. The Veteran's only service-connected disability that has a compensable disability rating other than the PTSD is tinnitus, rated as 10 percent disabling. The basis for her TDIU claim was her PTSD, and she does not contend that she is unemployable due solely to any of her other service-connected disabilities. Consequently, the grant of a 100 percent rating for PTSD has rendered the issue of a TDIU moot. ORDER A 100 percent disability rating for PTSD is granted. The appeal as to entitlement to a TDIU is dismissed. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs