Citation Nr: 18141519 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 14-24 606A DATE: October 10, 2018 ORDER Entitlement to an initial 100 percent rating for posttraumatic stress disorder (PTSD) is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 29, 2017, is dismissed. FINDINGS OF FACT 1. The symptoms and overall impairment caused by the Veteran’s PTSD more nearly approximated total occupational and social impairment. 2. As a total (100 percent) rating for PTSD is being awarded for the entire claim period based in part on a finding of total occupational impairment, leaving no part of the claim period where the schedular rating is less than total, the issue of entitlement to a TDIU prior to June 29, 2017, is rendered moot. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial rating of 100 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The question of whether the Veteran is entitled to a TDIU prior to June 29, 2017, is rendered moot by the grant of a total (100 percent) rating for PTSD during the entire claim period, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § § 3.340, 3.341, 4.14, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to January 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for PTSD and assigned a 10 percent rating, effective March 7, 2011, the date the Veteran filed his claim. Less than a year later, in a May 2012 statement in support of claim, the Veteran requested “reconsideration” of the claim, writing, “I believe the evidence within my file supports an evaluation greater than 10 percent.” The Board finds that this was a timely and valid notice of disagreement (NOD) with the initial rating assigned in connection with the grant of service connection under the regulations in effect at that time. See 38 C.F.R. § 20.201 (NOD does not require special wording); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (“VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement”) (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). In a February 2013 rating decision, the RO increased the assigned rating for PTSD to a 30 percent effective, March 15, 2012. In March 2016, the Board denied the Veteran’s claim for an initial higher rating for PTSD. That decision was appealed to the United States Court of Appeals for Veterans Claims (the Court). In a June 2017 Memorandum Decision, the Court vacated the March 2016 decision and remanded it the Board. In December 2017, the Board expanded the appeal to include the issue of entitlement to a TDIU (consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009)) and remanded that issue and entitlement to an initial higher rating for PTSD for further development. For the reasons indicated below, the AOJ complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a July 2018 rating decision, the RO granted entitlement to a TDIU, effective June 29, 2017, the date the schedular requirement for TDIU was met. However, the issue of entitlement to a TDIU was raised as part and parcel of the Veteran’s initial higher rating claim for PTSD and as he filed his claim for PTSD in March 2011, the issue of entitlement to a TDIU prior to June 29, 2017, remains on appeal. Also in the July 2018 rating decision, the RO increased the assigned rating for PTSD to 30 percent, effective March 7, 2011; 50 percent effective June 10, 2013, and 70 percent effective June 29, 2017. This created staged ratings. The Veteran has not expressed satisfaction with the initial higher ratings; this issue, thus, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). Duty to Assist In this case, the Board is granting the highest rating possible for PTSD throughout the entire claim period, and thus further discussion of the duty to assist is unnecessary. See Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); see also 38 U.S.C. § 5103A (a)(2) (Secretary not required to provide assistance “if no reasonable possibility exists that such assistance would aid in substantiating the claim”); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Higher Initial Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given 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). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating higher than 30 percent prior to June 10, 2013, higher than 50 percent prior to June 29, 2017, and higher than 70 percent thereafter for PTSD. All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders. Under this criteria, a 30 percent rating is assigned when there is 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when 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; difficulty establishing effective work and social relationships. A 70 percent rating is assigned when 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. The use of the term “such as” in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated 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.” It was further noted that § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. Turning to the evidence of record, in the Veteran’s March 2011 statement, he described himself as a loner and indicated that he prefers social isolation. In May 2011, the Veteran was afforded a VA examination. He reported chronic sleep impairment, anxiety, irritability or outbursts of anger, and hypervigilance. He stated that he has been married three times. His indicated that his relationship with his current wife “could be better” and that his relationship was marked by his irritability, angry verbal outbursts, and emotional isolation. The Veteran stated that he and his wife do not sleep in the same room; he lives downstairs. He indicated that he has two friends; however, he only has one close friend. He stated that he has a bachelor’s degree and is currently enrolled in a master’s program. The examiner diagnosed PTSD and bipolar disorder and opined that they caused mild occupational and social impairment, which decrease work efficiency and ability to perform occupational tasks during periods of significant stress. The examiner opined that the Veteran psychiatric disorder “would likely have mild difficulty maintaining gainful employment.” The examiner explained that the Veteran’s PTSD results in limited ability to tolerate noise or crowds; he has conflict with authority figures; and is unable to appropriately manage negative feedback. In January 2012 and June 2013 VA statements, the Veteran’s VA treating psychiatrist reported that the Veteran exhibited memory problems, irritability, isolative behavior, and “grossly inappropriate behavior leading to marked dysfunction.” As a result, the VA psychiatrist concluded that the Veteran had “impairment” in all “domains” of his life, including family, work, and interpersonal relationships. In a March 2012 statement, the Veteran stated that his ability to work and sustain effective work relationships has deteriorated. He indicated that his PTSD causes impaired memory and difficulties making decisions, which negatively interferes with his ability to have an ongoing business. In March 2012, the Veteran’s two daughter and his wife provided statements regarding his PTSD symptoms. Specifically, the statements included the Veteran’s two daughters and his wife reports of observing the Veteran’s outbursts of anger in public place and at his office and that he physically and verbally attacks his family members. One of the Veteran’s daughter stated that the Veteran is unable to establish effective relationships due to his outburst. The Veteran’s daughter also stated that the Veteran makes others, to include of his clients and employees, feel uncomfortable with inappropriate behavior and complaints of sadness and anxiety. In Veteran’s wife statements she reported that when her and the Veteran attend social gatherings, he throws and destroys things and frighten others. In January 2013, the Veteran was afforded a VA examination. To this extent, in the June 2017 Memorandum Decision, the Court found that the Veteran’s January 2013 VA examination was inadequate in that the VA examiner relied upon inaccurate findings. Specifically, the Court found that the examiner inaccurately stated that the Veteran’s symptoms had improved despite contemporaneous medical statements of record noting that the Veteran’s PTSD symptoms were increasing in severity. Accordingly, given the inadequacy of the January 2013 VA examination, the Board need not address the examination further. In a June 2017 statement, the Veteran’s VA treating psychiatrist indicated that the Veteran continues to experience PTSD symptoms, such as emotional withdraw and irritability. The VA psychiatrist indicated that the Veteran’s PTSD causes family, social, and occupational impairment and he is “totally and permanently disabled to his PTSD.” In March 2018, the Veteran submitted an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) indicating that he has been unable to work since 2008 due to his service-connected PTSD. In March 2018, the Veteran was afforded a VA examination. He reported that he exhibits PTSD symptoms to include difficulty in adapting to stressful circumstances, including work or a work like setting and difficulty in establishing and maintaining effective work and social relationships. He denied suicidal ideations, delusions, or hallucinations. He stated that he has been married to his current wife for 34 years; however, he currently lives separately from his wife in the basement of their home, while she lives upstairs. He stated that his wife has “nothing to do with him.” He has two adult daughters, whom he has a good relationship. He has a brother who he has limited contact. He stated that he is employed part-time chiropractic orthopedist; he works a few hours a day. He has been a chiropractic orthopedist since 1983. The examiner indicated that that the Veteran has the ability to maintain minimal personal hygiene and other basic activities of daily living. He was oriented to person, place and time. The examiner diagnosed PTSD and bipolar disorder. Although the examiner checked a box indicating that he was able differentiate what symptoms were attributable to each diagnosis, he stated that it is not possible to differentiate what symptoms are attributable to each diagnosis without resorting to mere speculation, as the symptoms are highly intertwined. The examiner opined that the Veteran’s PTSD causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. For the following reasons, entitlement to an initial rating of 100 percent for PTSD is warranted. The evidence shows that in addition to the service-connected PTSD, the Veteran has been diagnosed with bipolar disorder. There is no evidence to distinguish the symptoms between the Veteran’s service-connected PTSD and his non-service connected bipolar disorder. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2017); Mittleider v. West, 11 Vet App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so.). Accordingly, all of the Veteran’s psychiatric symptoms will be attributed to his service-connected PTSD, for the purposes of assessing the severity of that disability. Throughout the appeal period, the symptoms and overall impairment caused by the Veteran’s PTSD more nearly approximated total occupational and social impairment. For instance, as to social impairment, the evidence shows that the Veteran is unable to function socially. To this extent, the only family relationship that the Veteran has been able to sustain is with his two daughters. He indicated that he has limited contact with brother. He has been married three times. As to his relationship with his current wife, throughout the appeal period, they have been sleeping in separate rooms. He indicated that he has one close friend. Furthermore, the evidence shows that the Veteran consistently reported social isolation and emotional withdrawal. His two daughters and wife indicated that the Veteran exhibits irritability or outbursts of anger towards others and that he verbally and physically attacks his family members. One of the Veteran’s daughter stated that the Veteran is unable to establish effective relationships due to his outburst. The Veteran’s VA treating psychiatrist indicated Veteran’s PTSD causes family and social impairment. As such, the evidence demonstrates total social impairment due to service-connected PTSD. With respect to occupational impairment, the evidence is unclear whether the Veteran is unemployed or employed part-time as chiropractic orthopedist. For instance, in the Veteran’s March 2018 TDIU application, he indicated that he has been unemployed since 2008. In contrast, during the March 2018 VA examination, the Veteran reported that he is employed part-time as chiropractic orthopedist and that he only works a few hours per day. In any event, the collective evidence of record demonstrates that the Veteran’s PTSD results in symptoms and impairment that more nearly approximate total occupational impairment. Importantly, the Veteran’s VA treating psychiatrist indicated that the Veteran’s PTSD causes and occupational impairment and he is “totally and permanently disabled to his PTSD.” Also, the Veteran’s daughters and wife submitted statements indicating that the Veteran has outburst of anger and has erratic behavior in public or in the work place. The Veteran’s wife explained that at social gatherings, the Veteran throws and destroys things and frightens others. During the March 2018 VA examination, the Veteran reported that he has difficulty in adapting to stressful circumstances, including work or a work like setting and difficulty in establishing and maintaining effective work and social relationships. The March 2018 examiner found that Veteran’s PTSD results in limited ability to tolerate noise or crowds; he has conflict with authority figures; and is unable to appropriately manage negative feedback. Such PTSD symptoms and behavior indicated above, would have direct impact on the Veteran’s prior employment as a chiropractic orthopedist, as he is working directly with people. Therefore, the evidence is thus at least evenly balanced as to whether the symptoms and impairment caused by the Veteran’s PTSD more nearly approximates total occupational and social impairment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, an initial 100 percent rating for PTSD is warranted for the entire claim period. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3 TDIU A TDIU may be assigned “where the schedular rating is less than total” and the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Veteran claims he is unable to work due to his service-connected PTSD. See Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940) dated March 2018. In a July 2018 rating decision, the RO granted entitlement to a TDIU, effective June 29, 2017. The Veteran is service-connected for PTSD; he has no other service-connected disabilities. As the Board is granting a 100 percent rating for PTSD throughout the entire claim period, there remains no time during the claim period where the schedular rating is “less than total,” as required for a TDIU. See 38 C.F.R. § 4.16(a). For this reason, the issue of entitlement to a TDIU prior to June 29, 2017, is now rendered moot. The question of whether the Veteran is entitled to an award of a TDIU prior to June 29, 2017, is rendered moot by the grant of a 100 percent schedular (“total”) rating for PTSD, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C. §§ 7104, 710; 38 C.F.R. §§ 4.14, 4.16. Thus, the facts presented in this case are distinguishable from those in Bradley v. Peake, 22 Vet. App. 280 (2008), because in this case the Veteran does not have any other service-connected disabilities. Under the facts presented in that case, there was no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. If the Veteran were to be awarded a TDIU prior to June 29, 2017, based on service-connected PTSD rendering him unemployable for any time during the rating period, it would impermissibly result in the same disability being “counted twice” in the assignment of a total rating. See generally 38 C.F.R. § 4.14. In addition, a TDIU prior to June 29, 2017, would not assist the Veteran in getting special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) because he has no other service connected disabilities, and the possibility of a TDIU assisting in getting SMC at the “s” level was the primary basis for the Bradley Court’s holding that TDIU was not necessarily rendered moot by the grant of a 100 percent rating. In consideration thereof, the issue of entitlement to a TDIU prior to June 29, 2017, must be dismissed as moot. The Board has considered the Veteran’s claims. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). See also Colayong v. West, 12 Vet. App. 524, 537 (1999) (“Hence, on remand the Board is required to address an extraschedular rating for the veteran’s service-connected Pott’s disease if it is not rated 100% as a schedular matter”) (emphasis added). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel