Citation Nr: 18100522 Decision Date: 04/16/18 Archive Date: 04/16/18 DOCKET NO. 15-22 070 DATE: April 16, 2018 ISSUES DECIDED: 2 ISSUES REMANDED: 1 ORDER Entitlement to a disability rating for PTSD in excess of 70 percent from July 26, 2010, through August 15, 2011, from November 1, 2001, through October 4, 2017, and from February 1, 2018 and thereafter, is granted. Entitlement to total disability rating based on individual employability due to service-connected disabilities (TDIU) is dismissed as moot. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s PTSD results in total occupation and social impairment due to symptoms such as grossly inappropriate behavior and persistent danger of hurting self or others. 2. The Veteran has a 100 percent disability rating for his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for a disability rating for 100 percent, throughout the period on appeal, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.15, 4.130, Diagnostic Code 9411 (2017). 2. The appeal for entitlement to TDIU is moot and the claim is dismissed. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from January 1975 to November 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from June 2012, August 2012, and August 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. In the June 2012 rating decision, the RO granted service connection for the Veteran’s PTSD, assigning a 70 percent rating effective August 15, 2011, a 100 percent rating effective August 16, 2011, and a 70 percent rating effective November 1, 2011. This was a staged rating, involving a simultaneous increase and decrease in compensation, and not a rating reduction. Reizenstein v. Peake, 22 Vet. App. 202, 208 (2008); O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007). In an October 2015 rating decision, the RO assigned an earlier effective date for service connection for the Veteran’s PTSD, assigning an initial disability rating of 70 percent effective July 26, 2010; all other ratings from the June 2012 rating decision remained unchanged. In December 2017, the RO assigned a temporary evaluation of 100 percent for the Veteran’s PTSD, effective October 5, 2017 based upon treatment requiring convalescence, and an evaluation of 70 percent effective January 1, 2018. In a January 2018 rating decision, the RO assigned a temporary evaluation of 100 percent effective January 1, 2018 because of hospitalization in excess of 21 days and an evaluation of 70 percent effective February 1, 2018. As in the case of the June 2012 rating decision, these were staged ratings, involving a simultaneous increase and decrease in compensation, and not a rating reduction. Reizenstein v. Peake, 22 Vet. App. 202, 208 (2008); O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007). Because the RO did not assign the maximum disability rating possible, the appeal for higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In June 2012, the Veteran filed a claim for TDIU based on his service-connected PTSD. In August 2012, the RO denied TDIU. In August 2013, the RO denied service connection for the Veteran’s coronary artery disease. The Board notes that there were additional medical records received after the last statement of the case in October 2015. However, due to the favorable disposition of this decision, there is no prejudice to the Veteran and a waiver is not necessary. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. 1. Entitlement to a disability rating for PTSD in excess of 70 percent from July 26, 2010, through August 15, 2011, from November 1, 2001, through October 4, 2017, and from February 1, 2018 and thereafter Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2017). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). 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 required for the evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). As the Veteran is currently in receipts of a 70 percent disability rating, the Board will analyze the evidence of record against the rating criteria for a 100 percent disability rating to determine if an increased evaluation is now warranted. Here, the Veteran’s service-connected PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411: A 100 percent disability rating is warranted for 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 or hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2017). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on this basis. 38 C.F.R. § 4.126(b) (2017). The Veteran is currently service-connected for PTSD. The Veteran asserts entitlement to a disability evaluation in excess of 70 percent for the time periods outlined above. From June 2010 through August 2011, the Veteran received mental health treatment with the VA. See VA Treatment Records, dated June 2010, August 2010. While the Veteran did not demonstrate suicidal or homicidal ideation, the Veteran demonstrated angry mood and affect with only fair judgment and insight. He reported a lengthy legal history with numerous incarcerations. See VA Treatment Records, dated June 2010. The statements of not only the Veteran, but his friend and his first wife, who knew the Veteran since childhood, indicated that there was no evidence of atypical behavior or criminal activity prior to his active service. See Statement in Support of Claim, dated March 2012; Buddy Statements, dated March 2012. During this period, he reported that he almost had an altercation with another resident of Volunteers of America, due to a perceived threat from that resident consistent with the causational stressor of the Veteran’s PTSD. See VA Treatment Record, dated August 2010. While the Veteran’s medication worked when he was compliant, he demonstrated that he did not always follow dosing requirements correctly. In August 2010, the Veteran presented to therapy and was sleepy. The Veteran confirmed that he took medication to sleep the night prior to therapy, but he did not feel that it worked, so he took another pill. See VA Treatment Records, dated August 2010. From August 2011 through October 2011, the Veteran underwent inpatient treatment for PTSD. See VA Treatment Records, dated August 2011 through October 2011. He was diagnosed with PTSD, anti-social personality disorder, and cocaine dependence in remission. At discharge, his goal was to participate in full-time employment. The Veteran reported that he had lost numerous jobs due to substance abuse. The inpatient treatment environment allowed the Veteran to interact with others, peers, and staff. The Veteran, again, underwent inpatient for PTSD from November 2011 through January 2012. See VA Treatment Records, dated January 2012. The Veteran reported, even during his inpatient hospitalization, that he kept his guard up much of the time due to his belief of the ongoing possibility of victimization by others. See VA Treatment Records, dated December 2011. In May 2012, the Veteran underwent a VA examination for the etiology of his PTSD. The Veteran reported significant avoidant symptoms to avoid thoughts and feelings associated with the trauma and reported always being “on guard” and reported a history of both criminal behavior and a history of physical altercations in response to his PTSD symptoms. This finding is consistent with the statement of his first wife, who stated that the Veteran changed after service, and became physically abusive to her. See Buddy Statement, dated March 2012. The examiner found that the Veteran had a restricted range of affect and demonstrate emotional numbing. The examiner found him to have deficiencies in most areas of occupational and social functioning. The Veteran continued to receive treatment after the VA examination, and he continued to report issues with anger. He reported leaving numerous angry voice messages with a person at the Tampa VA who canceled his surgery. See VA Treatment Records, dated January 2016. He further reported frequent nightmares involving life or death fights with other people as well as animals. He admitted to using crack cocaine during this time, which caused a frightening reaction. See VA Treatment Records, dated February 2017. The Veteran was admitted to a private hospital in August 2017 with cocaine dependence, PTSD, and bipolar disorder. See Private Treatment Records, dated August 2017-September 2017. He reported flashbacks, irritability, and angry outbursts. He demonstrated a restricted affect and exaggerated startle response. The Veteran had a history of suicidal ideation. The Veteran was discharged in September 2017 against medical advice. In October 2017, the Veteran underwent a VA examination to determine the severity of his PTSD. The Veteran reported nightmares, avoiding conversation of the trauma, a depressed and angry mood, a negative view of the world, irritability, poor sleep and concentration, and hypervigilance. The examiner noted that the Veteran had both PTSD and a cocaine use disorder, but opined that it was not possible to differentiate what portion of the behaviors are caused by which disorder, as they had been continuous, biological, and behaviorally interactive. The Veteran reported living at three different apartments. He was evicted from his last apartment and admitted homicidal ideation regarding his last landlord. He reported that he had had a “lot of fights.” The Veteran reported living in Cleveland in 2012. He stated that while he was in Cleveland, he had difficulty controlling his anger and reported physical altercations, notably with a person with whom he was in a car. The Veteran’s history included admission to the Hospital in August 2017 due to homicidal ideation; he endorsed suicidal ideation during the examination. The examiner found that the Veteran’s mood was dysphoric and affect was irritable. Of note, the examiner reported that the Veteran had worn the same clothes for three days. In October 2017, the Veteran was again admitted for inpatient residential treatment for his PTSD. Upon admission, he stated that he had a recent stressor of someone putting a t-shirt in the tail pipe of his car, which he was living in after being evicted, with the intent to kill him. See VA Treatment Records, dated October 2017. There is no evidence of a corroborating police report available in the record. The Veteran stated that he wanted to harm the responsible person and went so far as to obtain a gun in order to carry out this ideology. He was discharged in December 2017 due to policy violations, specifically not returning to domiciliary from his pass. At discharge, the Veteran was angry and hostile, with poor judgment and insight. He threatened to carry out both homicidal and suicidal ideations. Despite being determined to be only a moderate risk level upon discharge from the residential treatment facility, the Veteran presented to the Emergency Room that same night with chest pain and reporting hopelessness. The Veteran reported suicidal ideation with a plan. See VA Treatment Records, dated December 2017. The evidence demonstrates that, during the time on appeal, the Veteran demonstrated that he had grossly inappropriate behavior and was a persistent danger to himself and others. The Veteran had numerous physical altercations with others, including his first wife and a person with whom he was riding in a car. See Buddy Statement, dated March 2012; VA Examination, dated October 2017. He was admitted to the hospital multiple times, for extended periods, due to his inability to properly control his symptoms outside of an inpatient setting. See VA Treatment Records, dated August 2011-October 2011, November 2011-January 2012, October 2017-December 2017; Private Treatment Records, dated August 2017-September 2017, December 2017. He perceived threats from others on multiple occasions, and had a history of both suicidal and homicidal ideations with clear plans. See VA Treatment Records, dated August 2010, October 2017-December 2017; Private Treatment Records, dated December 2017. Additionally, the Veteran has numerous felony convictions since discharge from the service, indicating grossly inappropriate behavior. See VA Treatment Records, dated June 2010; VA Examination, dated May 2102. As such, the Veteran has consistently demonstrated grossly inappropriate behavior, as well as consistently been a persistent danger to himself or others. While the Board acknowledges that the Veteran has a concurrent diagnosis of cocaine addiction, the VA examiner found that it was impossible to determine the percentage of behaviors attributable to each diagnosis. See VA Examination, dated October 2017. In Mittleider v. West, 11 Vet. App. 181 (1998), the United States Court of Appeals for Veterans Claims (Court) held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Given that the evidence is at least in equipoise in favor of the maximum disability rating of 100 percent, the Board finds that the Veteran’s claim should be granted. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 4.3, 4.7 (2017). 2. Entitlement to TDIU Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. The Veteran asserted unemployability due to his service-connected PTSD in a June 2012 claim. However, the claim of entitlement to TDIU has been rendered moot by the award of a 100 percent schedular evaluation for PTSD. See Bradley v. Peake, 22 Vet. App. 280 (2008). 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, there is no need, and no authority, to otherwise rate that Veteran 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). Accordingly, the grant of a 100 percent rating for the Veteran’s service-connected PTSD renders the issue of entitlement to TDIU moot. Bradley v. Peake, 22 Vet. App. 280, 293 (2008); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). REMANDED ISSUES The issue of entitlement to service connection for coronary artery disease, to include as secondary to the Veteran's service-connected PTSD, is remanded for additional development. The Veteran was issued a Statement of the Case in connection with his claim for coronary artery disease in June 2015. Thereafter, additional VA treatment records were added to the record. There has been no waiver of new evidence. Moreover, the VA treatment records were not submitted by the Veteran and therefore there is no basis for a waiver under 38 C.F.R. § 20.1304(c). Thus, this claim must be returned to the AOJ for issuance of a Supplemental Statement of the Case. The issue is REMANDED for the following action: 1. The AOJ should take appropriate steps to contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issue remaining on appeal. The Veteran should also be notified that he may submit evidence or treatment records to support his claim. The Board is particularly interested any outstanding records of VA medical treatment (generated after the last treatment notes of record). The AOJ should attempt to obtain any such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran’s VA claims folder. 2. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel