Citation Nr: 19110313 Decision Date: 02/08/19 Archive Date: 02/08/19 DOCKET NO. 15-15 367 DATE: February 8, 2019 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed as moot. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the symptoms and impairment caused by the Veteran’s PTSD more nearly approximated total occupational and social impairment. 2. The instant grant of a 100 percent rating for PTSD effectively renders the issue of entitlement to a TDIU moot. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for a 100 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The issue of entitlement to TDIU is moot. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.101 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1992 to February 1995. These matters come before the Board of Veterans’ Appeals (Board) from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran service connection for his PTSD and assigned an initial 50 percent rating. In August 2013, the RO denied the Veteran’s claim for TDIU. The Veteran timely appealed the PTSD initial rating decision and the denial of TDIU. In June 2013, the Veteran testified hearing before a decision review officer (DRO); a transcript of that hearing is of record. The Veteran and the Veteran’s representative indicated that the Veteran shot himself in the chest due to his service connected PTSD. Therefore, the issue of entitlement to service connection for gunshot wound of the chest, secondary to service connected PTSD, has been raised. However, the issue has not been adjudicated by the agency of original jurisdiction (AOJ). The Board does not have jurisdiction over this issue, and the issue is referred to the AOJ for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits). 1. Entitlement to a higher initial rating of 100 percent disabling for PTSD is granted. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Here, however, as shown below, the evidence warrants a uniform 100 percent rating. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency 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). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 38 C.F.R. §§ 4.125, 4.130. The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, DC 9411. This disability is rated according to the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 50 percent disability rating is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent disability rating is warranted when 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 disability rating is warranted when 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 list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The Board notes that VA updated its regulations to incorporate, in lieu of the DSM-IV, references to the Fifth Edition of the DSM (DSM-5) which, among other things, eliminates Global Assessment of Functioning (GAF) scores. These changes apply to claims that were certified for appeal to the Board on or after August 4, 2014. See 80 Fed. Reg. 14,308 (March 19, 2015) (Applicability Date). In this case, the DSM-5 is applicable. See August 2015 “Certification of Appeal” form (VA Form 8). Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds that, for the following reasons, the evidence is at least evenly balanced as to whether the Veteran’s PTSD met the criteria for a 100 percent rating during the entire claim period. The September 2011 VA examiner diagnosed the Veteran with PTSD, panic disorder with agoraphobia, and recurrent major depressive disorder in partial remission. Symptoms of the Veteran’s PTSD included nightmares, hypervigilance, and intrusive thoughts. The examiner indicated that the Veteran had social and occupational impairment with reduced reliability and productivity. However, the examiner also noted that the Veteran’s PTSD symptoms caused clinically significant impairment in social occupational and other important areas. The question of the rating warranted by the symptoms and impairment caused by the Veteran’s PTSD with depression is a legal and not a medical one. 38 C.F.R. § 3.100 (a). Given the Veteran’s overall symptomatology as described below, his symptoms more nearly approximate total occupational and social impairment. Regarding occupational impairment, although the September 2011 VA examiner indicated that the Veteran is capable of managing his financial affairs, the Veteran has not been working or capable of maintaining employment. A March 2015 correspondence from the Veteran’s prior co-chief operator stated that the Veteran has not been working since February 2011. Statements from the Veteran indicated that he was unable to work due to his PTSD since inflicting upon himself a gunshot wound in February 2011. Thus, the Veteran’s service-connected PTSD has prevented him from sustaining employment. The Veteran’s service-connected PTSD has completely impaired the Veteran’s social life in many ways. In February 2011, feeling extremely depressed the Veteran shot himself in the chest. Private medical reports from January 2011 show that the Veteran was admitted for 4 days due to potential harm to himself because of major depression, post-traumatic stress disorder, and anxiety disorder. At time of hospitalization, the Veteran was guarded and admitted having suicidal or homicidal ideations. Further private records indicate that the Veteran remained hospitalized for the majority of February, from February 5, 2011 to February 22, 2011. This hospitalization occurred only about four days after the Veteran had been released from an inpatient facility because of suicidal and homicidal thoughts. Since February 2011, the Veteran’s service treatment records indicate that the Veteran often has suicidal ideations and has a difficult time not thinking about the February 2011 event. February 2011 was not the first time the Veteran thought of or attempted hurting himself. Medical records from November 2014 indicated that the Veteran has a history of PTSD and attempted to shoot himself in 2007. In addition to hurting himself, medical records indicated that the Veteran had thoughts of hurting others. The Veteran’s January 2019 brief indicated that the Veteran has homicidal thoughts towards animal abusers because while in service he witnessed the killing of a dog he bonded with and cared greatly about. Over the years, the Veteran had reoccurring thoughts of assaulting pet owners whom he thought were abusing their animals. Moreover, the Veteran’s service connected PTSD has totally affected his personal life and ability to maintain relationship with others. According to the September 2011 VA examination, the Veteran was married once but is now divorced. He has no children. The latest medical treatment records indicate the Veteran has a girlfriend. Nevertheless, of significance is a note from a January 2011 medical record indicating that the Veteran has limited to no support system. Prior to hurting himself in February 2011, the Veteran had called his girlfriend and family members and upon not getting an answer from anyone, went ahead with his action. A December 2014 medical treatment record indicated that the Veteran’s PTSD is affecting his relationships as the Veteran demonstrates avoidance of other and the outside world, does not like going out, and is irritable. Instead of creating and maintaining relationships, the January 2019 brief indicated that the Veteran in general preferred to isolate himself with his dogs and stay at home. In addition, according to the September 2011 VA examination, the in-service stressor of witnessing his dog’s killing, led to feelings of detachment and estrangement from others. The Veteran showed markedly diminished interest or participation in significant activities. A July 2014 medical treatment note indicated that the Veteran has become angry and argumentative during medical treatment interactions. In addition, the Veteran has had symptoms listed in the criteria for a 100 percent rating, including persistent delusions and hallucinations. In his June 2013 DRO hearing testimony, the Veteran testified that he lacked motivation for personal hygiene and often forgot to take care of his hygiene. The record contains a May 2014 letter from a private physician. The physician indicated that the Veteran is constantly suffering from depression and anxiety and has daily panic attacks. He explained that the Veteran has chronic sleep impairment with nightmares and daytime flashbacks and that his short-term memory is compromised. The physician went on to indicate that the Veteran’s affect is flat and motivation non-existent. He indicated that the Veteran avoids people if at all possible and has no friends. Moreover, the physician indicated that “[a]ll areas of [the Veteran’s] life, work, social, family, and interpersonal relationships have been affected negatively” and that the Veteran is “totally disabled at this time and for the foreseeable future and that [the Veteran is] unable to obtain or maintain suitable, gainful employment.” In sum, the record indicates that the Veteran has had persistent delusions and hallucinations. He had displayed grossly inappropriate behavior, intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene, and has been in in persistent danger of hurting himself or others. Moreover, his PTSD symptoms caused extremely severe occupational and social impairment. The evidence is thus at least evenly balanced as to whether the symptoms and impairment caused by the Veteran’s PTSD more nearly approximated total occupational and social impairment during the entire claim period. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a 100 percent rating is warranted for the entire claim period. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 4.7, 4.130, DC 9411. 2. Entitlement to TDIU is moot. In November 2013, the Veteran submitted VA Form 21-8940 for TDIU. He asserted that his PTSD prevented him from securing or following any substantially gainful occupation. The Veteran reported that he last worked full-time in February 2011 when disability affected full-time employment. In light of the decision above, the Board finds that the issue of entitlement to a total rating based on individual unemployability is moot. The Board recognizes that an award of a 100 percent disability rating does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating and has additional disability ratable at 60 percent or higher. The Court held in Buie and Bradley v. Peake, 22 Vet. App. 280, 294 (2008) that a 100 percent schedular rating does not render TDIU moot if the TDIU would assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114 (s). In this case, the Veteran is now service-connected for PTSD rated 100 percent disabling, bilateral hearing loss rated 30 percent disabling, and tinnitus rated 10 percent disabling. The record does not suggest that these disabilities cause unemployability apart from his service-connected PTSD. Thus, there is no evidence that further consideration of TDIU would benefit the Veteran by assisting him in obtaining SMC pursuant to 38 U.S.C. § 1114 (s). The issue of TDIU is therefore rendered moot by the Board’s decision granting a 100 percent rating for service connected PTSD. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.101 (a). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lopez, Law Clerk