Citation Nr: 18115495 Decision Date: 07/03/18 Archive Date: 07/02/18 DOCKET NO. 17-44 305 DATE: July 3, 2018 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) with depressive disorder is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities is denied. Special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is granted from February 1, 2018, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for dermatitis involving the neck and arms is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD with depressive disorder results in total occupational and social impairment. 2. During the pendency of this appeal, the Veteran is receiving the highest schedular rating possible for PTSD. 3. In addition to the Veteran’s 100 percent grant for PTSD, service connection is in effect for urinary incontinence, rated as 60 percent disabling, from February 1, 2018. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a 100 percent rating for PTSD have been met. 38 U.S.C. § 1155. (2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. Entitlement to a TDIU is moot. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 4.16 (a) (2017). 3. The criteria for SMC, effective February 1, 2018, have been met. 38 U.S.C. §§ 1114 (s), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In April 2018, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing on the issues on appeal to the Board. A transcript of the hearing is of record. In a May 2018 rating decision, the Regional Office (RO) granted service connection for urinary incontinence with an evaluation of 60 percent, effective February 1, 2018. 1. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with depressive disorder. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The criteria for evaluating PTSD are found at 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted where 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). From April 7, 2011, the Veteran has been assigned a 70 percent rating for PTSD. An evaluation of 70 percent has been assigned because of the Veteran’s persistent hallucinations, persistent delusions, difficulty in adapting to stressful circumstances, suicidal ideation, inability to establish and maintain effective relationships, occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, impairment of short- and long-term memory, panic attacks (less than weekly), mild memory loss, depressed mood, chronic sleep impairment, and anxiety. The Board finds, however, that the symptomatology demonstrated during the pendency of the appeal more nearly approximate that of the higher 100 percent rating. In support of the claim, in her April 2018 hearing testimony, the Veteran testified that she had lost interest in daily activities, did not eat, went through periods of depression, had become more irritable, and isolated from her family because of a fight. The Veteran testified that she found it hard to cope and trust being around people and feeling safe. The Veteran raised the issue of entitlement to TDIU as part of her increased rating claim for PTSD in her hearing testimony. She stated that she found it difficult to be around people and did not “see herself being around people or in an environment where she can work.” The Veteran was last examined by VA for her service-connected PTSD in June 2017. In the June 2017 VA examination report, the Veteran’s symptoms were reported as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideation, persistent delusions or hallucinations. These findings are consistent with the findings shown on an earlier August 2015 VA examination and VA outpatient treatment records as well as the Veteran’s 2018 Board testimony and a November 2017 statement from the Veteran’s treating physician finding her 100 percent disabled due to PTSD. The Board finds that the overall evidence demonstrates that the Veteran’s functioning more nearly approximates the criteria necessary for a higher 100 percent rating indicating that the Veteran is totally occupationally and socially impaired by her PTSD. She suffers from persistent delusions or hallucinations. She is mentally and socially isolated from family and friends. She is extremely angry and has suicidal ideations. The Board is aware that the symptoms listed under the 100 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 100 percent evaluation. Thus, the Board finds that the preponderance of the evidence, including the clinical findings, shows that the Veteran’s PTSD symptoms, including those listed in the criteria and those not listed, more nearly approximate total occupational and social impairment. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence supports a rating of 100 percent. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities. A TDIU may be assigned when the disabled veteran is unable to obtain or maintain substantially gainful employment as a result of service connected disabilities. A veteran will prevail on a schedular TDIU claim if the following two criteria are satisfied. The veteran (1) has either a single service connected disability rated at 60 percent or more, or multiple service connected disabilities totaling 70 percent, with at least one disability that is rated at 40 percent or more; and (2) is unable to obtain or maintain substantially gainful employment based solely on service connected disabilities. 38 C.F.R. § 4.16 (a), 4.25 (2015). The Veteran’s meets the schedular criteria for eligibility for a TDIU during the relevant period addressed in this decision. A TDIU rating is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). 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 request for TDIU moot where 100 percent schedular rating was awarded for the same period). Thus, entitlement to a TDIU is moot as a 100 percent schedular evaluation is being assigned for the Veteran’s service-connected PTSD for the entirety of the appeal period; the Veteran has not contended, and the record does not show, entitlement to a TDIU on any other basis other than her service-connected PTSD. However, a veteran is entitled to SMC when the veteran has ‘a service-connected disability rated as total’ and a separate disability or disabilities rated at 60 percent or higher. 38 U.S.C. § 1114 (s) (2012). A TDIU rating based upon multiple disabilities does not meet the requirement of a single disability requirement of 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242 (2010). 3. Entitlement to SMC from February 1, 2018. In this case, the Board awards the Veteran a 100 percent rating for her service-connected PTSD disability. Therefore, for SMC purposes this disability satisfies the requirement of a “service-connected disability rated as total.” See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Because the Veteran has a single service-connected disability rated as total (i.e., her PTSD), and has additional service-connected disabilities that are independently rated at least 60 percent (urinary incontinence), the criteria for SMC are met as of February 1, 2018. Thus, in light of the decision of the United States Court of Appeals for Veterans Claims in Bradley and in Buie, entitlement to SMC under 38 U.S.C. § 1114 (s) is granted, effective February 1, 2018. REASONS FOR REMAND 1. Entitlement to service connection for dermatitis involving the neck and arms is remanded. In the April 2018 hearing, the Veteran testified that she saw a private doctor for her skin condition in order to obtain a second opinion. The Veteran testified that her initial skin issues began in 2008 while in service and she was diagnosed with eczema. The Veteran contends that within one year after her military service, her skin condition became progressively worse. The Veteran stated that she was prescribed creams and told to keep her hands moisturized, none of which has resolved the skin issues. The private treatment record the Veteran identified is not associated with the claims file. The Board finds that additional development is necessary before a decision may be rendered with respect to the claim for entitlement to service connection for dermatitis involving the neck and arms. As such, remand of this claim is required to obtain relevant private treatment records and for provision of a VA examination and etiology opinion. The matter is REMANDED for the following action: 1. Obtain and associate with the record copies of any outstanding and relevant VA treatment records. 2. After securing the appropriate medical release, obtain and associate with the record copies of all private treatment records for the Veteran’s claimed skin condition. All development efforts should be associated with the record. 3. Then, schedule the Veteran for an examination with an appropriate clinician to assess her for skin disabilities to be conducted after development in (1) and (2) described above has been completed. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. (a.) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. (b.) The examiner must review the Veteran’s relevant private and VA post-service treatment records, as well as all relevant lay statements, and then diagnose all current skin conditions. Then, the examiner is asked to provide the following opinion: i. Whether it is at least as likely as not (50 percent or greater probability) any diagnosed skin condition: (1) began during active service; or (2) is otherwise related to service. The examiner should address all post-service diagnoses, as well as any current diagnosis on examination, and their etiological relationship, if any, to service. (c.) The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.M. Floore, Associate Counsel