Citation Nr: 1800718 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 00-23 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent prior to January 25, 1999, for posttraumatic stress disorder (PTSD). 2. Entitlement to total disability rating based on individual unemployability (TDIU) prior to January 25, 1999. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1970 to September 1971, including service in Vietnam from August 1970 to August 1971, and he is a Vietnam combat Veteran. Commendations and awards include a Combat Infantryman Badge and an Army Commendation Medal with an Oak Leaf Cluster and "V" device. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted an earlier effective date of March 5, 1975, for the Veteran's PTSD and assigned a 50 percent disability rating for the period prior to January 25, 1999. The Veteran contends that he has been unable to maintain a substantially gainful occupation because of his service-connected PTSD. Because the issue of entitlement to a TDIU is part and parcel of a claim for a higher rating, the Board has jurisdiction of this issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In January 2009, the Board denied the issue of a rating in excess of 50 percent for PTSD prior to January 25, 1999. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (the Court). The parties subsequently filed Joint Motion for Remand, and in an Order dated in February 2010 the Court granted the parties' Motion, vacating the Board's January 2009 decision, and remanded the matter for action pursuant to the Joint Motion. In August 2010, the Board remanded the case for additional development consistent with the parties' Motion. In a decision dated in July 2012, the Board denied the issue of entitlement to an initial disability rating in excess of 50 percent prior to January 25, 1999, for PTSD; and the issue of entitlement to TDIU prior to January 25, 1999. In October 2012 the Veteran appealed that decision to the Court, and in March 2013 the parties filed a Joint Motion for Remand. In an Order dated in March 2013 the Court vacated the Board's July 2012 decision and remanded the matter for action pursuant to the parties Motion. The Board remanded the matter in January 2014 for further development consistent with the March 2013 Joint Motion. That development has been completed, and the case is again before the Board for adjudication. In March 2017, the Board requested a medical opinion from a VA Health Administration (VHA) specialist. The requested opinion was received in July 2017 and a copy has been provided to the Veteran and his counsel. FINDINGS OF FACT Throughout the period from March 5, 1975 to January 25, 1999, the Veteran's PTSD was productive of nightmares, flashbacks, hypervigilance, lapses in memory, suspiciousness, suicidal ideation, depression, mood swings and mental confusion that seriously impaired his ability to establish or maintain effective or favorable relationships with people, resulted in moderate to severe difficulty in social and occupational settings, and rendered him unable to secure or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Since March 5, 1975, the criteria for a 100 percent rating for PTSD have been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2002); 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 (1987, 1996). 2. The issue of entitlement to a TDIU is moot as a matter of law. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's PTSD disability is rated as 50 percent for the appeal period from March 5, 1975, to January 25, 1999. He seeks a higher rating and contends that he has been unable to obtain or maintain substantially gainful employment as a result of his PTSD during this period. Applicable Law 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.A. § 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). Where the appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In March 1975, the schedular rating criteria did not include a diagnostic code for PTSD. 38 C.F.R. § 4.132 (schedule of ratings for mental disorders) (1974); see 45 Fed. Reg. 26326 (April 18, 1980) (the schedule for rating disabilities is being amended to include the new diagnostic classification of post-traumatic stress disorder). At that time, the general rating formula for psychoneurotic reaction contained criteria for evaluating mental disorders, such as PTSD, that are neither psychoses nor organic brain syndromes. 38 C.F.R. § 4.132 (general rating formula for psychoneurotic disorders) (1974). The schedular criteria for psychoneurotic disorders that were in effect at the beginning of the rating period at issue in this appeal were amended effective February 3, 1988. See 53 Fed. Reg. 23 (Jan. 4, 1988). The criteria for rating mental disorders were again amended effective November 7, 1996; the November 1996 formula remains in effect. See 61 Fed. Reg. 52695 (Oct. 8, 1996) (amending the sections of the VA schedule for rating mental disorders); see also 38 C.F.R. § 4.130 (general rating formula for mental disorders) (2009). When the law governing a claimant's disability rating changes while on appeal, the claimant is entitled to have his claim considered under both sets of criteria to determine which set is more favorable, and to be rated under the more favorable rating. Karnas v. Derwinski, 1 Vet. App. 308 (1991). As such, the Veteran's claim must be considered under all three sets of criteria. The prior versions of the schedular rating criteria will be applied for the entire rating period on appeal. Prior to February 3, 1988, a 50 percent evaluation was assigned when 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 evaluation required that the disability be productive of a seriously impaired ability to establish or maintain effective or favorable relationships with people and that the psychoneurotic symptoms were of such severity and persistence that there is pronounced impairment in the ability to obtain or retain employment. A 100 percent evaluation 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. 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. In addition, psychiatric disability was manifested by a demonstrable inability to obtain or retain employment. Effective February 3, 1988, Diagnostic Code 9411 provided that 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. 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 must 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). Thus, under the schedular criteria in effect prior to November 7, 1996, the Court held that where the Veteran's mental disorder was assigned a 70 percent evaluation and that mental disorder precluded a Veteran from securing or following a substantially gainful occupation, regardless of whether the Veteran had other compensable service-connected disabilities, the mental disorder must be assigned a 100 percent evaluation under the appropriate diagnostic code. Johnson v. Brown, 7 Vet. App. 97. Under the rating criteria that became effective November 7, 1996, a 50 percent evaluation is warranted for chronic adjustment disorder when the disorder causes occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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. A 70 evaluation requires 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); and an inability to establish and maintain effective relationships. Finally, a 100 percent evaluation is warranted 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; and memory loss for names of close relatives, own occupation, or own name. In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the United States Court of Appeals for Veterans Claims (Court) held that VA regulations require that, unless the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability, here PTSD, can be distinguished from any other diagnosed psychiatric disorders, e.g., schizophrenia, VA must consider all psychiatric symptoms in the adjudication of the claim. Here, the VHA expert providing the July 2017 medical opinion found that the Veteran's psychiatric history has been complicated by his use of alcohol, marijuana and heroin, and that as plausible a case can be made for many of the symptoms he suffered from, including lapses of memory, suspiciousness, depression, suicidal ideation and mood swings, being as likely caused by PTSD as substance abuse. Thus, the Board will consider all of the Veteran's psychiatric symptoms in determining the appropriate rating. Analysis The Board finds that during the period on appeal, the Veteran's PTSD disability caused him to be unable to obtain or retain substantially gainful employment and thus, a 100 percent rating for PTSD is warranted throughout the entire period under the regulations that were in effect in March 1975. As noted above, under the schedular criteria for psychoneurotic disorders that were in effect at the beginning of the period on appeal, a 100 percent evaluation was assigned for the following: "The attitudes of all contacts except the most intimate are 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. Demonstrably unable to obtain or retain employment." In Johnson v. Brown, the Secretary conceded that the criteria in 38 C.F.R. § 4.132, DC 9411 were written in the disjunctive and as such set forth three independent bases for grating a 100 percent rating. See Johnson, 7 Vet. App. at 97. Although the Court in Johnson considered the diagnostic criteria as effective February 3, 1988, a comparison of the diagnostic criteria prior to and after the change in the regulation shows that there was no material difference in the criteria for a 100 percent rating. Consequently, the Board finds that under the diagnostic criteria in effect in March 1975, a 100 percent rating is for application where a claimant is demonstrably unable to obtain or retain employment due to a psychoneurotic disorder. In this case, the evidence of record shows that it is at least as likely as not that the Veteran was unable to obtain or retain employment as a result of his service-connected PTSD. The Veteran completed a Social Security disability report in March 2002 on which he reported employment history from 1986 to 1999. During that timeframe, he reported multiple jobs. The Veteran's Social Security Administration earning reports show that his income fluctuated widely from year to year. He had no SSA earnings from 1975 to 1977 when he was attending school. For four other years (1990, 1993, 1994, and 1995), he had no SSA earnings. For three years (1984, 1985, and 1998) he earned over $13,000, but for five years (1978, 1980, 1986, 1992, and 1996), he earned less than $1,000. For the remaining ten years, he earned more than $1,000 but less than $10,000. Thus, the evidence of record shows that the Veteran has variable employment during the appeal period. In July 2017, the Board received a medical opinion from a VHA expert concerning the severity of the Veteran's psychiatric disorder for the relevant period. The VHA expert opined that from March 5, 1975 to January 25, 1999, the Veteran's PTSD resulted in a severely impaired ability to establish or maintain effective or favorable relationships with people and rendered him unable to obtain or maintain substantially gainful employment. The VHA expert noted that, according to the available medical records, the Veteran's PTSD was productive of nightmares, flashbacks, hypervigilance, lapses in memory, suspiciousness, suicidal ideation, depression, mood swings and mental confusion during the relevant period. See July 2017 VHA Opinion. The VHA expert noted that the Veteran had no close friends, had trust issues and isolated himself. See id. The VHA expert further noted that the Veteran had a series of up to 20 full time jobs at various times during the relevant time period and that he demonstrated an inability to adapt to change and demanding work environments. The VHA expert further noted that given the Veteran's work history of having up to 20 full time, often unskilled jobs and holding no one position for longer than two years, it was it least as likely as not that the Veteran's PTSD symptoms rendered him unable to secure or maintain substantially gainful employment during the relevant period. See id. The Board notes the VA medical opinions of record finding that the Veteran's PTSD symptoms did not result in such a severe occupational impairment. However, as the evidence in this case is in equipoise, reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107 (b). When a veteran is in receipt of a 100 percent schedular rating, a TDIU cannot be assigned, since this benefit is available only where "the schedular rating is less than total." See 38 C.F.R. § 4.16. In this decision, the Board grants a schedular 100 percent rating for the Veteran's PTSD throughout the period on appeal. Therefore, the issue of entitlement to a TDIU is moot, and is dismissed as a matter of law. ORDER Subject to the law and regulations governing payment of monetary benefits, from March 5, 1975 to January 25, 1999, an evaluation of 100 percent rating for PTSD is granted. The appeal regarding entitlement to a TDIU is dismissed. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs