Citation Nr: 18154513 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-55 803 DATE: November 30, 2018 ORDER Entitlement to an initial 100 percent rating for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed. FINDINGS OF FACT 1. For the entire period on appeal, and with reasonable doubt resolved in favor of the Veteran, the evidence shows that the Veteran’s PTSD symptomatology more nearly approximates total occupational and social impairment. 2. As the Veteran has been granted a 100 percent schedular rating for his PTSD for the entire period on appeal, the issue of entitlement to TDIU is moot. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial 100 percent evaluation for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. Entitlement to a TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board initially notes that although the issues of entitlement to service connection for a heart disorder and a higher initial rating for PTSD were included on a November 2016 VA Form 8 (Certification of Appeal), their inclusion was a clerical error. On a November 2016 VA Form 9, the Veteran clearly specified that he was only appealing the issue of entitlement to a TDIU. In Percy v. Shinseki, 23 Vet. App. 37 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the 60-day period in which to file a substantive appeal is not jurisdictional, and thus, VA may waive any question of timeliness in the filing of a substantive appeal. In that case, by treating a disability rating matter as if it were part of the Veteran’s timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. In this case, as to the issue of entitlement to service connection for a heart disorder, unlike the claimant in Percy, VA has not “consistently treated this matter as if it was part of the timely filed Substantive Appeal.” Percy, 23 Vet. App. at 46. Other than the November 2016 VA Form 8 and Appeal Certification Worksheet, which are merely administrative documents, there is no reference to a continued claim of entitlement to service connection for a heart disorder subsequent to the Statement of the Case, and VA did not take any action to treat the issue as being on appeal. 38 C.F.R. § 19.35 (2017) (noting that the certification of appeals is used for administrative purposes). The RO did not issue a Supplemental Statement of the Case or otherwise readjudicate the claim since a September 2016 Statement of the Case. As to the issue of entitlement to a higher initial rating for PTSD, in April 2018 correspondence, after the Veteran submitted a February 2018 Fully Developed Claim for an increased rating for PTSD, the RO informed him that it could not process the claim because that issue was already on appeal and would proceed in accordance with the appellate process. Accordingly, since the RO has treated the issue of entitlement to a higher initial rating for PTSD as if it were part of a timely perfected appeal, the Board will do so as well, as reflected above on the title page. PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In this case, the Veteran was assigned an initial 70 percent rating for PTSD. PTSD is evaluated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this general rating formula, 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 warrants a 70 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 warrants a 100 percent rating. Id. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are 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). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) (also explaining that VA intended the General Rating Formula to provide a regulatory framework for placing veterans on the disability spectrum based upon their objectively observable symptoms). In this case, the Veteran contends that an initial 100 percent rating for PTSD is warranted. He alleges that his PTSD has resulted in him being totally isolated with almost no family or social relationships and that it has prevented him from obtaining gainful employment. See e.g., July 2014 correspondence. The evidence shows that the Veteran spent most of post-military career driving trucks full time but lost his job in January 2010 due to cardiovascular disorders. See February 2015 Request for Employment Information. Soon thereafter, he was awarded Social Security Administration disability benefits based on circulatory disease and diabetes mellitus. See Social Security Administration records received February 2015. The Veteran contends that although he lost his job as a result of nonservice-connected disabilities, his service-connected PTSD not only results in total occupational impairment but also total occupational impairment. See March 2015 notice of disagreement. With reasonable doubt resolved in favor of the Veteran, the Board agrees. The Veteran underwent a VA contract examination in December 2014. The examiner there noted depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment in short- and long-term memory, disturbances of motivation and mood, difficulty in establishing effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran reported four failed marriages and that his children want nothing to do with him because of “symptoms they don’t understand.” He reported being engaged to his fiancée of three months but that sometimes he “blows up on her.” The Veteran stated that he stays away from people, does not leave the house and shut the doors and windows. The Veteran reported experiencing nightmares, excessive night sweats, aggressive waking if startled, and that he cannot leave his house or be around people because of being nervous. The examiner diagnosed PTSD which he assessed as causing occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. He assigned a Global Assessment of Functioning score of 40, reflecting major impairment in several areas such as work, school, family relations, judgment, thinking or mood. The Veteran underwent another VA examination in August 2016. The examiner noted depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran reported that the only person in his family that he talks to is his mother and that he talks with her about once a week. He reported that he last spoke with his brother a couple of years ago due to a lot of disagreements. He denied relationships with any extended family members. The Veteran also noted that soon after the December 2014 examination, the engagement to his fiancée ended. He denied dating anyone since then because he does not leave his home often. He noted that his three adult children “won’t have anything to do with him” and that attempts to reach out have been unsuccessful. The Veteran reported having one friend and that they occasionally go out for a car ride but that they do not engage in other activities outside the home. The Veteran last worked in 2010 as a truck driver but multiple heart attacks ended that career. The examiner observed, among other things, that the Veteran’s attention/concentration was grossly intact but that he had problems with relevant tasks on mental status examination that appeared to be associated with academic deficiencies. The examiner diagnosed PTSD, anxiety disorder, and depressive disorder which he assessed as causing occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The examiner noted that the anxiety and depression diagnoses were new diagnoses warranting independent diagnoses but that both were “highly related” to his PTSD and that it was not possible to differentiate which symptoms were attributable to each diagnosis. The evidence in the claims file is consistent with the above VA examinations. VA treatment records show frequent symptoms of depression, severe anxiety, insomnia/sleep impairment, nightmares, and loneliness/isolation. See, e.g., VA treatment records dated from November 2013, November 2014, January 2016, November 2016, November 2017. The Veteran is very socially isolated and the few instances where he has interacted socially have had negative consequences. See January 2016 VA treatment record (reporting fleeting suicidal ideation following a confrontation with his mother over the holidays); February 2018 VA treatment record (reporting an altercation with two neighbors that resulted in the Veteran “going after them” until a policeman intervened). Upon review of the evidence, and with reasonable doubt resolved in favor of the Veteran, the Board finds that an initial 100 percent rating for PTSD is warranted. As to social impairment, the evidence shows that the Veteran’s frequent symptoms of severe depression, severe anxiety, insomnia/sleep impairment, nightmares, and isolation have more nearly approximated total social impairment. The Veteran has had four failed marriages, a broken engagement, essentially no relationship with his three children and a poor relationship with his brother. Although he occasionally speaks with his mother on the phone and sometimes goes on a car ride with one friend, he does not engage in any social activities outside his home. Rather, he stays isolated by himself in his home and rarely leaves because he reports that he cannot be around people. Of the few social interactions the Veteran has had, some have resulted in feelings of suicidal ideation or acts of aggression. As to occupational impairment, the evidence shows that the Veteran’s PTSD symptoms have also more nearly approximated total impairment. One examiner observed problems with relevant tasks on mental status examination and although there was some question as to whether this was related to academic deficiencies, both examiners noted difficulty in establishing effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. While it is clear that the Veteran’s initial job loss in 2010 was not directly related to service-connected PTSD, it does not follow that PTSD does not now prevent employment. Indeed, the December 2014 examiner assigned a Global Assessment of Functioning score of 40, reflecting major impairment in several areas including work, judgment, thinking or mood, and the evidence shows that the Veteran’s symptoms have not improved materially since that time; rather, they appear to have worsened as evidenced by additional interrelated diagnoses of anxiety and depression, among other symptoms. Accordingly, any doubt as to whether the Veteran’s PTSD results in total occupational impairment is resolved in favor of the Veteran. In sum, the Veteran’s PTSD has resulted in symptoms of similar severity, frequency, and duration to the symptoms associated with a 100 percent rating and have more nearly approximated total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411; Mauerhan, 16 Vet. App. at 436; Vazquez-Claudio, 713 F.3d at 116-17. Accordingly, the Board finds that an initial 100 percent schedular rating for PTSD is warranted. TDIU The Veteran has also claimed entitlement to a TDIU which he contends is the result of his service-connected PTSD. See January 2015 Application for Individual Unemployability. As discussed above, the Veteran has been awarded an initial 100 percent schedular rating for his PTSD. The 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). Thus, the Veteran’s claim for a TDIU, which does not include a time period greater than the period applicable to the initial rating for PTSD, is moot as he has been awarded a 100 percent schedular rating for this period when TDIU was under appeal as well. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Counsel