Citation Nr: 18144381 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-35 745 DATE: October 24, 2018 ORDER Entitlement to a 100 percent disability rating for posttraumatic stress disorder (PTSD) is granted prior to February 3, 2014, subject to the regulations governing payment of monetary awards. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to November 13, 2012 is dismissed as moot. FINDINGS OF FACT 1. Prior to February 3, 2014, the Veteran’s PTSD was manifested by symptoms consistent with total occupational and social impairment. 2. Throughout the appeal period, the Veteran has been rated 100 percent for PTSD, his only service-connected disability during the appeal period. CONCLUSIONS OF LAW 1. Prior to February 3, 2014, the criteria for entitlement to a 100 percent disability rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The appeal for entitlement to TDIU prior to November 13, 2012 is moot, and the claim is dismissed. 38 U.S.C. §§ 7104, 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1984 to August 1988, from March 1989 to March 1993, and from December 2001 to November 2002. These matters come before the Board on appeal from rating decisions issued in August 2011, November 2012, and May 2017. Procedurally, the Veteran’s appeal comes to the Board via a substantive appeal filed in July 2016 regarding issues discussed in the June 2016 Statement of the Case (SOC). By the time of the Veteran’s substantive appeal, the Veteran had received notice of a proposed prospective reduction to his disability rating for PTSD. The Veteran mentioned his objection to this proposed reduction in his substantive appeal. However, the reduction of the Veteran’s PTSD disability rating was not one of the issues in the SOC, and is not procedurally before the Board. The reduction was eventually accomplished in a March 2018 rating decision. The Veteran has one year from the date he received notice of that rating decision to file a Notice of Disagreement (NOD) in the event he continues to object to this rating action. 1. Entitlement to a disability rating in excess of 50 percent prior to November 13, 2012, and to a disability rating in excess of 70 percent from November 13, 2012 to February 3, 2014 for PTSD. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. 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 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 a matter. VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA regulations provide that all mental health conditions are rated under the same General Rating for Mental Disorders. 38 C.F.R. § 4.130. Mental disorders are evaluated as 50 percent disabling when they cause 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. Id. A 70 percent rating is assigned where a mental disorder causes 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 warranted where 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; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the various levels of rating criteria in § 4.130 are non-exhaustive, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, the symptoms listed at the various levels of rating criteria in § 4.130 are deemed by VA to be representative of the corresponding levels of occupational and social deficiency. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Thus, the fact that a claimant has a symptom listed in one evaluation level without an analogue at lower evaluation levels indicates that the presence of that symptom alone may be cause for finding that the claimant’s condition meets that particular level of disability. Id. Here, the Veteran’s VA treatment records document that in November 2010, shortly after he filed his claim for VA benefits, the Veteran was reporting passive suicidal thoughts (that his family would be better off financially without him) and hearing voices or command hallucinations. He described not sleeping, waking in a cold sweat, compulsively checking the house (being unable to stop himself from doing this), hearing voices and following them from room to room, as well as paranoia (believing that he was being followed or bugged). A few months later, VA treatment records document that the Veteran was briefly hospitalized in June 2011 due to thoughts of suicide, depression, anger difficulty sleeping, constant hyper-alertness, panic episodes that sometimes-induced vomiting (reportedly daily vomiting due to anxiety), and auditory and visual hallucinations. After his hospitalization in June 2011, the Veteran’s VA treatment records continue to describe similar symptoms. The Veteran received a VA examination in July 2011 that documented the Veteran’s then recent history of inpatient treatment for PTSD and MDD with features and thoughts of suicide, tendency to be isolated except for wife, hand wringing, constricted affect, anxious and dysphoric mood, reporting difficulty concentrating, difficulty falling asleep, waking up after falling asleep, disturbing dreams, only sleeping about 3 hours a night, fatigue during the day, irritability when things were out of place, panic attacks 3-4 times per week, anxiety in crowded settings, rapid heartbeat, depression with plans and intent for suicide, a previous attempt to asphyxiate himself in garage, being easily frustrated, quickly angered, having a sharp tongue, experiencing life as a heavy burden, hearing a voice encouraging him to kill people and himself prior to recent hospitalization, and forgetting to do things that he needed to do. In November 2011, the Veteran filed for benefits from the Social Security Administration (SSA). In his application materials, the Veteran and his wife discussed the Veteran’s psychiatric symptoms including irritability, being startled by loud noises, discomfort in crowds, paranoia, poor sleep, black outs, night sweats, nightmares, hallucinations, loss of concentration, propensity to overspend, depression, anxiety, and suicidal tendencies. In December 2011, the Veteran received an examination regarding his SSA application that described psychiatric symptoms such as nightmares, flashbacks, a heightened startle response, night sweats, suicidal thoughts, a history of suicidal gestures, avoiding public places, low energy, emotional reactions to military themed television, hypervigilance, confrontations on the job with coworkers, impatience, irritability, difficulty interacting appropriately with others. The provider of this examination indicated that the Veteran would need a medium to lower stress work environment. Continuing to seek SSA benefits, in January 2012, the Veteran reported increasing paranoia, worsening symptoms of PTSD, increased depression, nightmares, cold sweats, memory loss, lack of attention, cognitive problems, blackouts, depression, re-experiencing his traumatic events, avoidance behaviors, a loss of interest, feeling that life was going to be cut short, irritability, hypervigilance, and a heightened startle reflex. On examination regarding his SSA benefit application in January 2012, the Veteran was noted to have severe depression and anxiety, suicidal ideation, and a history of 2 previous suicide attempts requiring hospitalizations, but no active suicidal ideation at the time of the examination. VA treatment records from April 2012 document that the Veteran complained of symptoms of increased depression, paranoia, irritability, auditory and visual hallucinations, erratic sleep, nightmares, and an inability to trust others. It was also noted that he had an anxious affect. In further correspondence with SSA in May 2012, the Veteran and his wife reported psychiatric symptoms of cold sweats, night terrors, an inability to stay asleep, forgetting to take his medication, more general memory loss, lack of energy, difficulty concentrating enough to manage money, being short tempered, moodiness, depression, being jumpy, paranoia, being withdrawn, a heightened startle reflex, zoning out frequently, intrusive memories, constant sense of danger, feeling emotionally drained, auditory hallucinations, difficulty trusting others, social isolation, feeling alone, fear of being killed, and suicidal thoughts. In June 2012, VA treatment notes document that the Veteran continued to have fleeting suicidal thoughts, feelings of guilt or self-blame, auditory hallucinations, nightmares, depressed mood, a tearful affect, and limited and impaired judgment and insight. In July 2012, VA treatment notes document that the Veteran continued to complain of bad dreams. August 2012 VA treatment notes document that the Veteran was experiencing decreased depression, found his irritability more manageable, was sleeping better, but continued to experience paranoia, had an anxious affect, and was still hearing a male voice at times. September 2012 VA treatment notes document that the Veteran had fewer hallucinations, but continued to hear voices. He was experiencing less irritability, but remained withdrawn. He continued to be paranoid but had better sleep. At other treatment visits during September 2012, the Veteran reported visual hallucinations, feelings of abandonment, increased anger, hypervigilance, poor sleep, hitting his wife while in a deep sleep, becoming so frustrated with the family dog that he picked up the dog by the throat, vague thoughts of homicide without a direct threat or plan against any specific person or people, moderately impaired insight and judgment, a flat affect, and delusional thinking. VA treatment notes in November 2012 at first document decreased auditory hallucinations, but continued visual hallucinations, as well as the Veteran feeling unforgiven for the actions that he took during wartime. He was later hospitalized in November 2012 after he reported hearing voices and seeing two men in suits around his house and retrieving a weapon. Even after being discharged, November 2012 VA treatment notes document that the Veteran continued to experience hallucinations. In January 2013 VA treatment notes, the Veteran was noted to have decreased hallucinations and paranoia. In February 2013, he reported having minor paranoia and a good relationship with his wife. He even reported that he was going out to eat and visiting others. In March 2013 VA treatment records, the Veteran reported feeling down, easily angered, concerned about thoughts in his head when in conflict, had a mildly depressed mood, was agitated, paranoid, had limited insight and judgment, and felt distrustful of everyone. In June 2013, he reported symptoms of agitation, stress in his home life, paranoia, tense and guarded affect, impaired insight and judgment, and delusions. In July 2013, he also reported symptoms of paranoia, hypervigilance, hearing voices, irritability, and blunted affect. VA treatment records from October 2013 document the Veteran feeling agitated, being easily aggravated, experiencing an increased frequency of nightmares, paranoia, and hypervigilance. VA treatment records from December 2013 document that the Veteran was generally feeling better with an increase in his medication, but continued to experience poor sleep and being awakened by nightmares. VA treatment notes from January 2014 document that the Veteran reported seeing people, hearing voices, and getting commands from people there. He was assessed as having severe PTSD and major depressive disorder (MDD) with psychosis and paranoid features. The provider indicated that the Veteran was experiencing auditory and visual hallucinations, had suicidal ideation, but was not at an imminent risk of suicide. Based on this evidence, the Board finds that the symptoms of the Veteran’s PTSD meet the criteria for a 100 percent rating throughout the entire appeal period prior to February 3, 2014. In particular, the evidence of record indicates that the Veteran has experienced auditory and visual hallucinations throughout the appeal period. Hallucinations are a symptom listed in the criteria for a 100 percent rating that do not have an analogous lesser symptom in the criteria for the lower levels of disability. 38 C.F.R. § 4.130. Consequently, a 100 percent rating prior to February 3, 2014, is appropriate. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). From February 3, 2014, the Veteran has already been assigned a 100 percent disability rating for his PTSD. Therefore, this period need not be addressed in this decision. As noted above, the Veteran’s PTSD disability rating has since been reduced to 10 percent, effective June 1, 2018; however, he has not filed a notice of disagreement with that decision. 2. Entitlement to TDIU The Veteran’s claim of entitlement to TDIU has been rendered moot by the award of a 100 percent schedular evaluation for PTSD for the entire appeal period prior to February 3, 2014 (inclusive of the period between the Veteran’s initial claim and November 13, 2012). See Bradley v. Peake, 22 Vet. App. 280 (2008). Notably, from November 13, 2012 to February 3, 2014, the Veteran had been awarded TDIU already (see May 2017 rating decision); therefore, this decision addresses only that period prior to November 13, 2012, for the Veteran’s claim for TDIU. The United States Court of Appeals for Veterans Claims (Court) has recognized that 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 a request for TDIU moot where 100 percent schedular rating was awarded for the same period). There are circumstances where entitlement to TDIU can be relevant despite a grant of 100 percent disability rating for a service-connected condition or conditions. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). However, those circumstances are not relevant in the present case, because the Veteran’s only service-connected condition during the relevant appeal period is PTSD – the condition for which he is now rated 100 percent as a result of this decision. As there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal of the claim for TDIU prior to November 13, 2012, is moot and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994); 38 U.S.C. §§ 7104, 7105. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel