Citation Nr: 1801976 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-10 999A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating service-connected posttraumatic stress disorder (PTSD) and depressive disorder, not otherwise specified (NOS), currently rated 50 percent disabling, exclusive of periods for which the Veteran received a temporary total rating. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION The Veteran represented by: Matthew I. Wilcut, Attorney at Law ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1967 to September 1969, to include service in Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, in which the RO assigned a 100 percent rating for a 21 day hospitalization effective April 12, 2011 and a 50 percent rating effective June 1, 2011, for the Veteran's service connected PTSD and depressive disorder, NOS. The RO also denied entitlement to a TDIU. The Veteran filed a Notice of Disagreement (NOD) in July 2012, contending that a 100 percent rating was warranted. Jurisdiction over the Veteran's claims was subsequently transferred to the RO in Winston-Salem, North Carolina. The RO provided a Statement of the Case (SOC) in February 2014 and the Veteran subsequently perfected the appeal. In October 2015, the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for a VA examination to ascertain the nature and severity of all current manifestations of the Veteran's service-connected PTSD and depressive disorder, NOS, which was administered in November 2016. A supplemental SOC (SSOC) was filed in December 2016 denying both claims, and they have returned to the Board. In January 2017, the Veteran filed a statement in support asking the Board to consider a January 2017 disability benefits questionnaire (VA Form 21-0960P-3) when evaluating his PTSD claim. This form was associated with the claims file along with the referenced support letter and is considered below. Regarding representation, the Veteran was represented by the North Carolina Division of Veterans Affairs until April 2017 when a new VA Form 21-22a was filed with the VA appointing attorney Michael I. Wilcut as representative. As such, the VA recognizes this attorney as the Veteran's representative. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the symptoms and overall impairment caused by the Veteran's service-connected PTSD have more nearly approximated total occupational and social impairment. 2. Given the grant of 100 percent rating for PTSD, and the fact that this is the only service connected disability, a TDIU could not in any circumstance increase the Veteran's compensation. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for a rating of 100 percent for the Veteran's service-connected PTSD have been met, exclusive of periods for which the Veteran received a temporary total rating. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The issue of entitlement to TDIU is moot. 38 U.S.C. § 1114(s), 1155, 7105; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93. As the Board is granting the benefit sought in full, further discussion of the VCAA is unnecessary. Entitlement to an Increased Rating for PTSD Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1, Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. Psychiatric disorders are rated under the general rating formula for mental disorders. Under the general rating formula, a 50 percent disability rating where there is 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. A 70 percent rating is assigned when the psychiatric condition produces 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. Id. A 100 percent rating is assigned when there is total occupational or 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 and place; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Turning to the record, during the pendency of the claim, the Veteran has had symptoms and overall impairment due to PTSD that correspond to a 70 and a 100 rating. For example, in the above-referenced January 2017 Disability Benefits Questionnaire (DBQ), the psychologist who completed the questionnaire noted the Veteran had memory loss for names of close relatives, own occupation or own name and gross impairment in thought processes or communication. The psychologist also noted suicidal ideation, difficulty in adapting to stressful circumstances including work, inability to establish and maintain effective relationships, impaired impulse control and a neglect of personal appearance and hygiene. Additionally, the November 2016 examiner noted that the Veteran's rising suspiciousness of others has decreased his social activities, he only has one friend that he visits once per week and denies any other significant socialization. He has little interest in doing things for several days and feels depressed and hopeless. Similarly, the January 2017 psychologist indicated that he had to retire from work for medical reasons in 2009, has no intimate relationships, no hobbies, no activities and his only companion is a dog. Finally, the psychologist noted that the Veteran had total occupational and social impairment. The above evidence reflects that throughout the appeal period, the Veteran has had symptoms listed in the criteria for both 70 and 100 percent ratings and that he is unable to work and socially isolated. The evidence is thus at least evenly balanced as to whether the symptoms and overall impairment more nearly approximate the total occupational and social impairment in the criteria for a 100 percent rating. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 100 percent rating for PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to TDIU The Court has held that a 100 percent scheduler rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation (SMC) benefits pursuant to 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). Here, however, given that the Veteran is now service connected for a single disability rated 100 percent, a TDIU could not help him obtain SMC at the (s) level, and the issue of entitlement to a TDIU is therefore moot. Consequently, dismissal of this matter is warranted. ORDER Entitlement to a rating of 100 percent for PTSD and depressive disorder NOS is granted, exclusive of periods for which the Veteran received a temporary total rating, subject to controlling regulations governing the payment of monetary awards. The issue of entitlement to TDIU is dismissed as moot. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs