Citation Nr: 1804751 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-24 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with secondary depressive disorder not otherwise specified (NOS) and alcohol abuse. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to June 1966. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge in August 2017. A transcript of that proceeding has been associated with the claims file. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, his PTSD with secondary depressive disorder NOS and alcohol abuse has been productive of total occupational and social impairment for the entire appeal period. 2. As the Veteran has been granted a 100 percent rating for PTSD with secondary depressive disorder NOS and alcohol abuse for the entire period on appeal, the issue of entitlement to TDIU is moot. CONCLUSIONS OF LAW 1. The criteria for an increased rating for PTSD with secondary depressive disorder NOS and alcohol abuse of 100 percent, for the entire period on appeal, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017). 2. Entitlement to a TDIU is moot. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating Legal Criteria A disability rating is determined by the application of VA's 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD with secondary depressive disorder NOS and alcohol abuse is rated under 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating 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; memory loss for names of close relatives, own occupation, or own name. Id. 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. 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. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. 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). Analysis The Veteran filed a February 2010 claim for increased rating for PTSD and asserted that his symptoms had worsened over the last year. See February 2010 Statement in Support of Claim. During the appeal period, in March 2010, the RO increased the rating for service-connected PTSD with secondary depressive disorder NOS and alcohol abuse to 70 percent disabling, effective February 3, 2010. The Board finds that the Veteran suffers from frequent and severe symptoms of PTSD with secondary depressive disorder NOS and alcohol abuse, such as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, impaired memory and concentration, suicidal thoughts, avoidance, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting, that are of such a severity and duration that they result in total occupational and social impairment. A September 2009 VA outpatient treatment note indicated that the Veteran reported feeling very depressed and expressed having passive suicide thoughts of "what is the point" sometimes, but denied current suicidal ideation and plan. The Veteran was afforded a February 2010 VA PTSD examination and the examination report indicated that the Veteran's depressive disorder, NOS symptoms included depressed mood all day, approximately four days per week; low energy every day; decreased appetite every day; difficulty focusing every day; trouble collecting his thoughts; feelings of worthlessness every day; and panic attacks. With regard to his panic attacks, the Veteran experienced approximately two panic attacks per month and his attacks were characterized by accelerated heart rate, sweating, trembling, shortness of breath, chest discomfort, nausea, and hot flashes. Regarding his alcohol abuse, the Veteran used alcohol two to three times per week to the point of intoxication. The Veteran's PTSD symptoms included recurrent and intrusive distressing recollections of the traumatic event including images, thoughts, or perceptions; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; restricted range of affect; irritability or outbursts of anger; difficulty concentrating; hypervigilance; and exaggerated startle response. The Veteran reported experiencing intrusive, trauma-related thoughts almost every day. The examination report indicated that the Veteran avoided most activity outside his residence and used alcohol to cope with thoughts and feelings related to his trauma. He experienced difficulty concentrating and mild impairment of recent memory all of the time. The Veteran reported that he was recently employed as a supervisor at a newspaper and that he resigned in December 2009. He stated that he had a lot of disagreements and arguments with upper management and the Veteran reported that his irritability resulted in poor social interaction. The examination report indicated that the Veteran did not participate much in family activities because he "isn't interested and doesn't feel comfortable." The Veteran was afforded an October 2010 VA PTSD examination and the examination report indicated that the Veteran's depressive disorder, NOS symptoms included depressed mood all day, several days a week; lack of motivation and energy; sleep disturbance; difficulty concentrating and maintaining focus on tasks he intends to complete; and feelings of worthlessness and hopelessness very day. Regarding his alcohol abuse, the Veteran used alcohol twice per week and had five to six mixed drinks each time. He reported that alcohol use continued to result strain his relationship with his wife. The Veteran's PTSD symptoms included recurrent and intrusive distressing recollections of the traumatic event with physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid thoughts feelings or conversations associated with the trauma; efforts to avoid activities places or people that arouse recollections of the trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; restricted range of affect; difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; and exaggerated startle response. The Veteran reported that he quit his job because he disagreed with upper management over his job duties. In a November 2010 Buddy/Lay Statement, an acquaintance of the Veteran through his children, R.L., indicated that he has watched the Veteran decline into a reclusive state over the years. He reported that the Veteran does not answer his phone except on rare occasion and that when he is outside of his house, he is withdrawn. R.L. described the Veteran's appearance as muffed hair, unshaven, sloppy clothes, and always nervous. Due to his PTSD with secondary depressive disorder NOS and alcohol abuse the Veteran has been unable to maintain any type of employment. In this regard, throughout the entire period on appeal, the Veteran reported significant difficulties being around others, withdrawal and anxiety in social situations, and depression that interfered with his mood and motivation, including passive suicidal thoughts. Significantly, in his VA Form 21-8940 Veteran's Application for Increased Compensation Based on Individual Unemployability dated in June 2012 the Veteran indicated that he last worked full-time in November 2009 and he became too disabled to work in December 2009 because PTSD prevented him from securing or following any substantially gainful activity and that he left his job because of his disability. In a June 2014 Buddy/Lay Statement, the Veteran's former coworker reported that the Veteran was placed under an unreasonable degree of stress/pressure and was forced out of the company. At his August 2017 Board hearing, the Veteran testified that he had lots of conflicts with management because of his PTSD. See August 2017 Hearing Transcript. Although the Veteran has reported some social contact with mainly family throughout the course of the appeal period, the Board finds that overall, he has significant social impairment. In this regard, throughout the entire period on appeal, the Veteran has described significant social avoidance and isolation, has demonstrated irritability or outburst of anger, and has endorsed panic attacks and passive suicidal thoughts. Additionally, the record indicates that the Veteran rarely left the house as he did not like to be around others. On the rare occasion when he was outside of his home, the Veteran was observed with "muffed hair", unshaven, and sloppy clothes, indicating maintenance of minimal personal hygiene. Therefore, based on the severity and duration of the Veteran's symptoms, the Board will resolve reasonable doubt in favor of the Veteran and find that for the entire period on appeal, his PTSD with secondary depressive disorder NOS and alcohol abuse most nearly approximates the criteria for a 100 percent rating under DC 9411. The Board has considered the VA treatment records, VA examination reports, and lay statements by the Veteran regarding the impact of his PTSD with secondary depressive disorder NOS and alcohol abuse on his occupational and social impairment. During this period, the Veteran has exhibited a variety of symptoms. The Board acknowledges that there has been some degree of fluctuation with respect to the severity of his symptoms. However, after a thorough review of the evidence, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the disability picture resulting from his symptoms of PTSD with secondary depressive disorder NOS and alcohol abuse more nearly approximates a 100 percent disability evaluation due to total occupational and social impairment. This is consistent with VA's determination to handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344(a). In summary, the Board believes that a 100 percent disability evaluation for this period contemplates the frequency, severity, and duration of his symptoms, while resolving all doubt in favor of the Veteran. The rating now assigned is based on all the evidence of record rather than any isolated medical finding or assessment of level of disability. 38 C.F.R. § 4.126(a). Accordingly, his myriad of symptoms during this period more nearly reflect the frequency, severity, and duration of symptoms ratable at the 100 percent disability evaluation. II. TDIU TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In this case, the Board has awarded a 100 percent schedular rating for the Veteran's PTSD with secondary depressive disorder NOS and alcohol abuse for the entirety of the period the claim has been pending. The Board finds that the grant of a total rating for PTSD with secondary depressive disorder NOS and alcohol abuse ,which results in the Veteran having a "total" (100 percent) rating for the entire rating period, renders the TDIU claim moot, and it must be dismissed. See Green v. West, 11 Vet. App. 472, 276 (1998) (holding that, if a 100 percent schedular rating is granted, a veteran is not also entitled to TDIU for the same period). The Board is cognizant of the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Bradley v. Peake, 22 Vet. App. 280 (2008), in which the Court held that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114(s) by having an additional disability of 60 percent or more (housebound rate). See Bradley v. Peake, 22 Vet. App. 280 (2008), 38 U.S.C. § 1114(s). Thus, Bradley made it such that even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. However, having reviewed Bradley, the Board concludes that the facts of that case are sufficiently distinguishable from the facts of this case such that the holding in Bradley is inapplicable, and the Veteran's TDIU claim is in fact moot. Specifically, the Veteran in Bradley was in receipt of a 100 percent schedular rating for service- connected disabilities other than his PTSD, which was rated at 70 percent. As such, the Court concluded that the PTSD on its own could potentially result in a TDIU in and of itself. Conversely, in the instant matter, the Veteran is in receipt of 100 percent schedular rating for PTSD with secondary depressive disorder NOS and alcohol abuse and only a combined 10 percent rating for his other service-connected disabilities of hearing loss and tinnitus. Moreover, the Veteran has indicated that it is his service-connected PTSD disability which has prevented him from securing or following any substantially gainful activity. See June 2012 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Individual Unemployability. The Veteran does not assert that his service connected tinnitus and hearing loss disabilities have rendered him unemployable and the evidence of record does not support that tinnitus and hearing loss interfere with his employability. In conclusion, aside from PTSD with secondary depressive disorder NOS and alcohol abuse, the Veteran does not have any service-connected disabilities, which are evaluated as less than total, that have been suggested to cause any unemployability. As such, Bradley is inapplicable, and the grant of a total schedular rating for PTSD with secondary depressive disorder NOS and alcohol abuse renders the Veteran's TDIU claim moot for the entire period on appeal. ORDER For the entire appeal period, entitlement to a rating of 100 percent for PTSD with secondary depressive disorder NOS and alcohol abuse is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. Entitlement to TDIU is dismissed. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs