Citation Nr: 18139679 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 14-38 764 DATE: October 1, 2018 ORDER The appeal as to entitlement to service connection for arthritis of the bilateral hands is dismissed. Entitlement to a 70 percent rating prior to January 3, 2013, for posttraumatic stress disorder (PTSD) is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a 100 percent rating from January 3, 2013, for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted prior to January 3, 2013, subject to the law and regulations governing the payment of monetary benefits. Special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) is granted from January 3, 2013, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. During the Veteran’s March 2017 Board hearing, he withdrew his appeal of the claim of entitlement to service connection for arthritis of the bilateral hands. 2. Prior to January 3, 2013 the Veteran’s PTSD was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. From January 3, 2013, the Veteran’s PTSD has been manifested by symptoms which most closely equate to total occupational and social impairment. 4. The Veteran’s service-connected disabilities precluded the Veteran from securing or following a substantially gainful occupation prior to January 3, 2013. 5. In addition to the Veteran’s 100 percent disability rating assigned for PTSD pursuant to this decision, service connection is in effect for additional disabilities independently ratable as 60 percent, from January 3, 2013. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim of entitlement to service connection for arthritis of the bilateral hands have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. Prior to January 3, 2013, the criteria for a 70 percent for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. From January 3, 2013, the criteria for a 100 percent rating for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. 4. The criteria for a TDIU prior to January 3, 2013 have been met. 38 U.S.C. § 5110; 38 C.F.R. § 4.16 (a). 5. The criteria for SMC, effective January 3, 2013, have been met. 38 U.S.C. §§ 1114 (s), 5107(b); 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to September 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2012 and January 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing on the issues on appeal to the Board. A transcript of the hearing is of record. 1. The appeal as to entitlement to service connection for arthritis of the bilateral hands is dismissed. At his March 2017 Board hearing, the Veteran withdrew his appeal as to the claim of entitlement to service connection for arthritis of the bilateral hands. The Veteran’s statement indicating his intent to withdraw his appeal, transcribed as a part of the record, satisfies the requirements for the withdrawal of a substantive appeal. Tomlin v. Brown, 5 Vet. App. 355 (1993). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. As the Veteran has withdrawn his appeal as to this claim before the Board, there remains no allegation of errors of fact or law for appellate consideration. Thus, the Board does not have jurisdiction to review the appeal and the claim is dismissed 2. Entitlement to a rating higher than 30 percent for PTSD prior to January 3, 2013 and higher than 70 percent thereafter. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The criteria for evaluating PTSD are found at 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is provided for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is provided 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. A 70 percent evaluation is warranted where there is 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 inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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. Id. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the Veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the Veteran's symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017). For instance, the scores assigned under the Global Assessment of Functioning (GAF) scale may be a relevant consideration. See e.g., Bowling v. Principi, 15 Vet. App. 1, 14 (2001). However, the American Psychiatric Association has since determined that the GAF score has limited usefulness in the assessment of the level of disability. Noted problems include lack of conceptual clarity and doubtful value of GAF psychometrics in clinical practice. 79 Fed. Reg. 45093 (Aug. 4, 2014). The Board notes that effective August 4, 2014, the regulations governing the rating of mental disorders were updated to replace all references to the DSM-IV with references to the DSM-V, which no longer utilizes the GAF score system. 80 Fed. Reg. 14308 (Mar. 19, 2015). However, this change does not apply to claims that were certified for appeal to the Board prior to August 4, 2014 even if such claims were subsequently remanded. Id. As the Veteran's claim had been certified to the Board in October 2016, the DSM-IV is no longer applicable to his claim Service connection for PTSD with an evaluation of 30 percent was granted in a May 2011 rating decision with an effective date of September 30, 2010. From January 3, 2013, the Veteran has been assigned a 70 percent rating for PTSD. The Veteran seeks a rating in excess of 30 percent for his service-connected PTSD prior to January 3, 2013 and in excess of 70 percent thereafter. An evaluation of 30 percent was assigned because of the Veteran’s diagnosis of insomnia and depression. In an October 2010 VA examination, the Veteran’s symptoms were depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). On examination, the Veteran reported that he had no psychiatric problems prior to service. He reported that from March 2010 through September 2010 he was seen for individual therapy to help cope with depression. The Veteran reported that since being discharge from the Army, he had increased irritability and problems sleeping which had affected his relationship with his wife and his employment. He also reported that when he was in service, he preferred to work alone because he did not want to work with others and lose his temper. The Veteran reported taking medication (Ambien and Lunesta). The Veteran reported frequent and moderate psychiatric symptoms of anxiety, worry, sleep problems, nightmares and night sweats. The Veteran was not suicidal or homicidal. No panic attacks were reported. The Veteran reported decreased appetite, feeling anxious daily, irritability, intrusive thoughts, and sleep problems with nightmares. The examiner noted that the Veteran’s PTSD was productive of occupational and social impairment with decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). The Veteran underwent a VA examination in June 2012. The VA examiner confirmed a diagnosis of PTSD, and alcohol dependence, in remission. The examiner provided that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran’s symptoms were reported as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective relationships. The Veteran reported he had a positive relationship with his family members and that he had been married since 2004. The Veteran reported that he had three children from previous relationships and the children visited in the summers. The Veteran stated that his marriage was going well. However, the Veteran also reported he had recently been arrested for stabbing his wife and was placed in a special program for Veteran’s with PTSD. He reported being on probation. The Veteran reported that he had been searching for a job since his discharge from active service. VA outpatient records show additional significant symptomatology. In July 2011, the Veteran was noted to have been attending the outpatient Substance Abuse Treatment Program (SATP) program since March 2011. He was noted to have a history of three arrests for assault, recently being arrested for stabbing his wife while intoxicated with no recollection of the event. He stated that he had problems with disturbed sleep as well as panic, anxiety, intrusive thoughts and hypervigilance. He also had some chronic pain issues that could negatively impact his ability to work. He was in a program with social security to try and find work that was suited to his special needs. The examiner noted that the Veteran had not used alcohol in the last month and a half; the examiner noted that when he lasted assessed the Veteran in March 2011, the Veteran was drinking heavily. In October 2012 VA treatment records, the Veteran reported that he had not worked since service in 2010, and was planning to start school, studying for an associate’s degree in computers. He reported that he started drinking one month earlier, and had stopped taking his medication because of sexual side effects. In an earlier October 2012 nursing note, the Veteran reported that he would be asking his psychiatrist to be admitted as he needed help; he was drinking beer and did have nightmares so he was unable to sleep. He denied suicidal/homicidal ideation. In January 2013, the Veteran was hospitalized for acute psychiatric treatment after expressing suicidal thoughts. It was also noted that one year earlier during a nightmare that the Veteran had stabbed his wife with a knife that he kept under his pillow thinking he was back in Iraq. The Veteran reported self-medication with alcohol particularly over the previous month. The diagnoses were PTSD and severe major depressive disorder with psychotic features. Psychological stressors were noted to be symptoms of PTSD, legal issues, limited income and unemployment. He was stable at the time of discharge, and not considered a danger to himself or others. In a November 2014 review PTSD examination, the Veteran’s PTSD was productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran’s symptoms were noted as depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and suicidal ideation. It was noted that the Veteran had a hospitalization in 2013 for attempted suicide. The Veteran was assigned a temporary total (100 percent) rating for his service-connected PTSD from January 23, 2013 to April 1, 2013 at which time his PTSD was assigned a 70 percent rating. Despite the VA examiners’ description of the Veteran’s PTSD as moderate prior to January 2013, the Board finds that the degree of demonstrated occupational and social impairment as reported at those examinations and in outpatient records along with the lay evidence shows that the Veteran’s PTSD was productive of greater impairment than the 30 percent rating represents. Based on the evidence, the Board finds that prior to January 3, 2103 a rating of 70 percent but no higher is warranted for the Veteran's service-connected PTSD. A 70 percent initial rating is more nearly approximated than either the currently assigned 30 percent initial rating, a 50 percent initial rating, or the next highest and maximum initial rating after 70 percent of 100 percent, in other words. The Veteran's symptoms indeed are of similar severity, frequency, and duration to those for a 70 percent rating. During this time, the Veteran’s PTSD manifested as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss. And, while he reported that his relationship with his spouse was good, he was on probation for stabbing her either while intoxicated or during a nightmare. There is evidence of excessive alcohol consumption during this time. Also, while he apparently was looking for work and/or thinking about enrolling in school, it appears that he was not successful in either endeavor. Thus, the Board notes that the Veteran’s PTSD resulted in symptomatology which more nearly approximates the symptoms outlined in the criteria for a 70 percent rating with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/or mood. An evaluation of 70 percent has been assigned prior to January 3, 2013, because of the Veteran’s psychiatric treatment and symptoms of intrusive thoughts, nightmares, hypervigilance, irritability, avoidance (social and triggers), anxiety, insomnia, anhedonia, and bouts of depression. The Board further finds that the symptomatology demonstrated from January 2013 more nearly approximate that of the higher 100 percent rating. Notably, in support of the claim, in his March 2017 hearing testimony, the Veteran testified that he had persistent nightmares that got worse when he relocated post-service. The Veteran testified that he had a nightmare one night and his spouse attempted to wake him and he accidentally stabbed her three times and went to jail (charges eventually dropped). He also testified that he did not have the desire to go anywhere and stayed home in his room. The Veteran further testified that he attempted to find work, but was unsuccessful. The Veteran stated that he attempted to attend college (Central Texas College) in 2011-2012, but was expelled due to an altercation with a teacher. The Veteran further provided that when he could not find work, he attempted to commit suicide because he was “just tired.” The Veteran reported that he stopped taking his medication in 2016 because he did not like the way the pills made him feel. During the hearing testimony, the Veteran’s spouse testified that the Veteran had problems getting along with people and that he basically “locks himself up in a room and watches television” and his patience is really low. She further testified that the Veteran does not get along with anyone and had an altercation with his brother in 2016 which involved the Veteran almost chopping off his brother’s finger with a machete, for which the Veteran was arrested. The Veteran further stated that his mental health symptoms began to get worse in 2004 and persisted since then. The Veteran has not worked in many years. With regard to PTSD, the Veteran reported that he is currently receiving Social Security disability benefits for his psychological disabilities, including his service-connected PTSD. In a letter dated April 18, 2017, the Veteran’s provider included that the Veteran has current diagnoses of PTSD and severe bipolar disorder with manic/psychotic episodes, that he would have moderate to severe difficulties with maintaining a job, and in fact may be unemployable. At the time of the visit, the Veteran continued to have severe symptoms arising from some combination of both PTSD and bipolar type 1, given many of the symptom overlap. The provider noted that he was unable to determine “unemployability” according to VA guidelines, as that is a function of the VA disability process. There is no probative evidence of record distinguishing the symptoms of the Veteran’s service-connected PTSD from that of his nonservice-connected bipolar disorder. See Mittleider v. West, 11 Vet. App. 181 (1998). The Veteran was last examined by VA for his service-connected PTSD in June 2017. The Veteran’s PTSD was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/or mood. The Veteran’s symptoms were noted as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control, such as unprovoked irritability with periods of violence. These findings are consistent with findings shown on an earlier November 2014 VA examination and other VA records as well as the Veteran’s 2017 Board testimony and an April 2017 statement from the Veteran’s treating physician finding his PTSD symptoms severe and with the potential to totally impede employment. The Board finds that the overall evidence demonstrates that from January 2013 the Veteran’s functioning more nearly approximates the criteria necessary for a higher 100 percent rating indicating that the Veteran is totally occupationally and socially impaired by his PTSD. He is mentally and socially isolated from family and friends. He has significant anger issues and has suicidal ideations. The Board is aware that the symptoms listed under the 100 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 100 percent evaluation from the date of his January 2013 hospitalization. Thus, the Board finds that the preponderance of the evidence, including the clinical findings, shows that the Veteran’s PTSD symptoms, including those listed in the criteria and those not listed, more nearly approximate total occupational and social impairment. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence supports a rating of 70 percent prior to January 3, 2013, and a 100 percent from January 3, 2013 and thereafter. 3. Entitlement to SMC from January 3, 2013. In this case, the Board awards the Veteran a 100 percent rating for his service-connected PTSD disability from January 3, 2013. Therefore, for SMC purposes this disability satisfies the requirement of a “service-connected disability rated as total.” See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Because the Veteran has a single service-connected disability rated as total (i.e., his PTSD), and has additional service-connected disabilities that are independently rated at least 60 percent, the criteria for SMC are met as of January 3, 2013. Thus, in light of the decision of the United States Court of Appeals for Veterans Claims in Bradley and in Buie, entitlement to SMC under 38 U.S.C. § 1114 (s) is granted, effective January 3, 2013. 4. Entitlement to a TDIU due to service-connected disabilities. A TDIU may be assigned when the disabled veteran is unable to obtain or maintain substantially gainful employment as a result of service connected disabilities. A veteran will prevail on a schedular TDIU claim if the following two criteria are satisfied. The veteran (1) has either a single service connected disability rated at 60 percent or more, or multiple service connected disabilities totaling 70 percent, with at least one disability that is rated at 40 percent or more; and (2) is unable to obtain or maintain substantially gainful employment based solely on service connected disabilities. 38 C.F.R. § 4.16 (a), 4.25 (2015). A TDIU rating is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). 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 request for TDIU moot where 100 percent schedular rating was awarded for the same period). Entitlement to a TDIU is moot from January 3, 2013 and thereafter as a 100 percent schedular evaluation is being assigned for the Veteran’s service-connected PTSD for that period and he is being awarded SMC from that date. The question becomes whether the Veteran was eligible for entitlement to a TDIU prior to January 3, 2013. As noted above, a TDIU may be assigned when the disabled veteran is unable to obtain or maintain substantially gainful employment as a result of service-connected disabilities. Prior to January 3, 2013, service connection has been established for PTSD, sleep apnea, lower back strain, right and left knee strain, right and left hip disability, urticaria, left shoulder strain, right thumb disability, groin strain, pseudofolliculitis barbae, and ingrown toenail of the right great toe. Pursuant to this decision, the Board has assigned a 70 percent rating for PTSD prior to January 3, 2013, and a 100 percent rating from that date. Thus, the Veteran’s service-connected disabilities meet the threshold disability requirements for entitlement to a TDIU prior to January 3, 2013, and the issue is moot from that date. A review of the evidence of record demonstrates that the Veteran has been unemployed since 2010 when he was discharged from the military and where he performed duties as a fueler. The Veteran indicated in his 2011 application that he was unable to work due to his PTSD, right hip, lower back, left knee, and urticaria. The Veteran indicated in his June 2015 application that he was not medically discharged, but had to “get out” of the military due to his PTSD symptoms. He also stated that he had not tried to obtain employment since he became too disabled to work. The Veteran stated that his PTSD prevented him from securing or following substantially gainful employment. The Veteran indicated that he had been under a doctor’s care or hospitalized in the twelve months prior to his application for entitlement to a TDIU. The Veteran stated that the date his disability affected his full-time employment was September 29, 2010. The Veteran indicated that he had completed high school and did not have any other education and training before he became too disabled to work. The psychiatric symptoms that the Veteran experienced prior to January 3, 2013 due to his PTSD are outlined in detail above, and indicate that the occupational impairment caused by such symptoms were significant. Further, October 2010 VA examination showed that the effect of the Veteran’s right hip condition would be difficulty in climbing stairs and difficulty climbing ladders. For his knee strain, the Veteran would have difficulty climbing or going down stairs and difficulty jogging. His low back strain would prevent him from doing bending exercises for extended periods. The urticaria had no impact on his daily activities. In consideration of the evidence of record, the Board finds that the Veteran’s service-connected disabilities precluded him from securing and following a substantially gainful occupation prior to January 3, 2013. The Veteran stated that he had not attempted to obtain employment since his discharge from the military in September 2010 and there is no evidence that he was successful in attending school or in securing long-term employment prior to January 3, 2013. While the conclusions of the VA examiners in October 2010 and June 2012 appear to indicate that the Veteran’s PTSD was not significant enough to prevent employment, the Board finds that the reported symptoms, the symptoms documented in outpatient records, and the Veteran’s lay evidence and testimony indicates that his service-connected disabilities, both physical and mental, prevented him from securing and maintaining gainful employment during this (Continued on the next page)   time. Accordingly, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU prior to January 3, 2013 is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.M. Floore, Associate Counsel