Citation Nr: 18142592 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-32 508 DATE: October 17, 2018 ORDER Entitlement to an initial 100 percent disability rating for posttraumatic stress disorder (PTSD) prior to May 7, 2018 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the entirety of the appeal period, the Veteran’s PTSD more nearly approximates total occupational and social impairment. 2. PTSD is the Veteran’s only service-connected disorder; the award of a 100 percent rating for PTSD has rendered the issue of entitlement to a TDIU moot. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating for PTSD have been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2018). 2. The grant of a 100 percent rating for PTSD renders moot the appeal for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2008 to May 2011. This matter is before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and February 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Nashville, Tennessee and Winston-Salem, North Carolina respectively. Jurisdiction over the case continues to reside with the Winston-Salem, North Carolina RO. As an initial matter, since certifying the case to the Board, the Veteran filed a claim for a temporary increased rating due to hospitalization in July 2018. The RO denied the claim because the Veteran was not hospitalized for the requisite 21 days; however, the RO granted the Veteran a 100 percent disability rating, effective May 7, 2018. Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. 5103, 5103A (2012); 38 C.F.R. 3.159 (2018). In light of the Board’s favorable decision, no discussion of VA’s duties to notify and assist is necessary for this claim. 1. Entitlement to an initial increased disability rating for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Court has held that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When rating a mental disorder, VA must consider the frequency, severity, and duration of the psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating 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. 38 C.F.R. § 4.126(a). Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted 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. 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is 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. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. According to the DSM-5, clinicians do not typically assess Global Assessment Functioning (GAF) scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court further addressed the value of GAF scores. The Court noted that although GAF scores were designed to help quantify and summarize the severity of symptoms associated with metal disorders, the DSM-5 eliminated GAF scores because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice.” DSM-5 at 16. The Court further explained that although it is true that examiners no longer use these scores, an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. Any reliance on evidence that expert consensus has determined to be unreliable would be impossible to justify with an adequate statement of reasons or bases. The Veteran is currently assigned a 50 percent disability rating for PTSD, effective March 8, 2013, and, as indicated above, a 100 percent disability rating for PTSD, effective May 7, 2018. VA medical treatment records from 2011 to present indicate that, while the severity of the Veteran’s symptoms wax and wane, he consistently reported symptoms of depression, anxiety, suspiciousness, difficulty concentrating, difficulty sleeping, difficulty maintaining relationships, suicidal ideation, irritability and angry outbursts, hypervigilance, paranoia, and delusions. Moreover, the record indicates that the Veteran attended some college courses and held several short-term jobs. The jobs the Veteran held were generally part-time and often resulted in his termination after a few weeks to a few months due to his inability to interact with people. The Veteran was afforded a VA examination in February 2014, which provides diagnoses of PTSD; alcohol use disorder, severe; opioid disorder, severe; cannabis use disorder, moderate; and unspecified depressive disorder. The examination notes that the Veteran experienced symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including worklike settings; and suicidal ideation. Additionally, the examination report notes that the Veteran experienced irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects, hypervigilance, exaggerated startle response, and problems with concentration. The examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran was engaged, articulate, and oriented. His mood was mostly angry or irritable, with an undercurrent of dysphoria. His motor movements and speech were normal. His thought processes were logical and goal directed. The examiner noted that he had some paranoid beliefs involving the government and religion that were close to delusional intensity, but these beliefs were not currently obsessive. The Veteran denied hallucinations. He admitted to frequent thoughts of suicide but denied any intentions or plans. The Veteran indicated that he experienced problems with sustaining attention, but he indicated this was not a problem when he worked at his previous job at a restaurant, interacting with the public. The examiner noted that the Veteran’s memory was grossly intact and his insight and judgment were fair. The Veteran submitted a statement from his former roommate, whom he lived with from May 2014 to October 2014, which indicated that the Veteran experienced difficulty sleeping, difficulty maintaining relations, and problems maintaining personal hygiene. The statement also noted that the Veteran had problems with anger, violence, depression, and paranoia. In a September 2015 statement, the Veteran indicated that he took medication for his depression and his anxiety, but he had “good days and bad days.” He also indicated that he had problems controlling his anger and had been engaged in fights. He noted that recently, he had “hurt someone pretty badly.” Additionally, the Veteran indicated that he had not worked in about a year, primarily because he had problems dealing with people at work. The Veteran also admitted that he stopped showering and changing clothes “for a while.” He asserted that he had friends but he had to cut some people out of his life recently. The Veteran indicated that he struggled with persistent thoughts of suicide, but he did not have any intent to act on it. He also noted that he “was seeing or hearing things” that were not there. In an April 2016 private evaluation, the private provider indicated diagnoses of PTSD, major depressive disorder with psychotic features, persistent depressive disorder (dysthymia), bipolar I disorder, and alcohol use disorder. The evaluation report notes symptoms of persistent delusions of paranoia, severe impairments in memory and concentration, inability to perform activities of daily living (i.e., forgetting to take out the trash and intermittently unable to perform even minimal standards of hygiene). The Veteran had indicated that, at one point, he had gone over a month without attending to his personal hygiene. The provider indicated that the Veteran had no friends and rarely left the house. The evaluation notes that he was constantly irritable and experienced angry outbursts, but he was only violent against inanimate objects. The Veteran indicated that he thought about suicide every day. The provider also noted that the Veteran had held a series of jobs over the years but was unable to sustain employment for more than a short period of time, determining that, in the provider’s opinion, the Veteran had been unable to secure or follow substantially gainful employment since he was discharged from active service. After conducting the phone interview with the Veteran and reviewing his entire claims file and VA medical records, the private provider found that the Veteran had total occupational and social impairment, and that he had experienced this since his separation from the military in May 2011. During the period on appeal, the Veteran was hospitalized due to his PTSD on two occasions, in July 2017 and February 2018. The February 2018 admission note indicates that the police were called to his mother’s residence when he had an argument with his sister and he expressed a desire to die. When the police arrived, he grabbed a gun so the “police shoot me.” However, he dropped the gun before going outside to the police, at which point he was arrested and taken to the hospital. The admission note indicates that the Veteran had symptoms of depression, anhedonia, difficulty concentrating, insomnia, low energy and sexual disfunction for the last six to seven years. Moreover, the Veteran frequently thought of suicide and “practiced” suicide by swallowing large amounts of pills and pointing his gun at his head, but he had not attempted suicide. He also reported that he had delusions of a dark spirit following him. Based on the evidence of record, the Board finds the Veteran’s PTSD to be manifested by total occupational and social impairment for the entire period on appeal. Specifically, due to the Veteran’s depressed mood, persistent suicidal ideation, impaired impulse control (such as irritability and angry outbursts), hypervigilance, paranoia, delusions, difficulty adapting to stressful circumstances, difficulty establishing and maintaining effective relationships, and intermittent inability to perform activities of daily living, the Board finds that this most closely approximates a 100 percent disability rating. In so concluding, the Board finds particularly persuasive the Veteran’s ongoing VA psychiatric treatment, hospitalizations, and consistently reported PTSD symptoms of depression; anxiety; hypervigilance; irritability; angry outbursts; paranoia; delusions; and suicidal ideation throughout the period on appeal. The Board finds the April 2016 private evaluation to be highly probative, which corroborated the Veteran’s medical history and PTSD symptoms. The provider thoroughly reviewed the Veteran’s claims file and VA medical treatment records, and found that the Veteran had total occupational and social impairment since his separation from the military in May 2011. While the Board notes that the Veteran was employed periodically throughout the appeal period, as previously indicated, he only stayed in these positions for a short time. Even though the Veteran attended some college level courses, he was unable to complete his degree, and his PTSD symptoms have manifested to such a degree that he is unable to adapt to a work setting. Therefore, the Board finds that a rating of 100 percent for the Veteran’s service connected PTSD is warranted for the entire period on appeal. 38 C.F.R. § 4.130, DC 9411. The record does not indicate that that the Veteran has experienced all of the symptoms associated with a 100 percent rating for PTSD. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Msuerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is a total occupational and social impairment sufficient to warrant a 100 percent rating even though all of the specific symptoms listed for this evaluation are not manifested. A TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a) (2015). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran is not seeking SMC at the housebound rate, and the record does not otherwise reasonably raise that matter. Further, the Veteran is not service-connected for any disability other than PTSD. The Board points out that a TDIU in this case would only be relevant to a special monthly compensation claim where the PTSD is not considered. Moreover, the Board points out that the effective date of any TDIU award in this case could not pre-date the effective date of the 100 percent rating for the PTSD. Consequently, the grant of a 100 percent rating for PTSD has rendered the issue of a TDIU moot. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel