Citation Nr: 19123780 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 14-15 976 DATE: March 29, 2019 ORDER Entitlement to an initial 100 percent (total) rating for posttraumatic stress disorder (PTSD) prior to March 30, 2016, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 30, 2016, is dismissed. FINDINGS OF FACT 1. For the period on appeal, the Veteran’s PTSD manifested by total occupational and social impairment due to symptoms such as flat affect, impaired judgment, and impaired impulse control (anger and unprovoked irritability), ongoing suicidal plans and ideation, near-continuous panic or depression, and intermittent inability to perform activities of daily living. 2. There is no longer a case or controversy as to the Veteran’s claim of TDIU, where the Veteran is receiving the highest rating possible for his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 100 percent for PTSD have been met. 2. The Veteran’s claim for TDIU is moot. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1969 to January 1971. The Board denied the Veteran’s claims in a February 2018 decision, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an October 2018 Order granting a Joint Motion for Remand (JMR), the Court vacated the Board’s decision and remanded the claims to the Board for action consistent with the terms of the JMR. The Court found that the Board failed to adequately address whether Appellant’s symptomatology was of similar severity, frequency, or duration to those symptoms contemplated by the criteria for an increased rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (Court held that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating”); see also 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The case is once again before the Board for adjudication. 1. PTSD The Veteran asserts that he is entitled to a higher rating for his service-connected PTSD. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1 (2018); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran’s PTSD is evaluated as 30 percent disabling under DC 9411, effective September 29, 2006, and as 100 percent disabling, effective March 30, 2016. It is the 30 percent disability rating that the Veteran is currently appealing. DC 9411 uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411 (2018). Under the General Rating Formula, a 50 percent evaluation 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 (2018). A 70 percent evaluation 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 work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411 (2018). The maximum schedular rating of 100 percent 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. 38 C.F.R. § 4.130, DC 9411 (2018). In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a) (2018). The rating agency shall assign an evaluation based on all 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. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b) (2018). The Board notes that with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as 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). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DC. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The relevant evidence includes a June 2006 record reflecting that the Veteran was seen by a VA mental health care provider and diagnosed with chronic PTSD. The Veteran was noted as having nightmares and intrusive thoughts related to his combat experiences. In a September 2006 treatment record, the Veteran reported a history of suicidal ideation with a plan, although he stated that he was not currently suicidal. He reported ongoing irritability and conflict with others as well as social isolation. The Veteran stated that he had no friends since his brother died, and he described a work history with many different jobs. See VA treatment records, September 28, 2006, VA psychology consult. In December 2006, the Veteran called the VA Medical Center (VAMC) stating that he had stopped taking his medication, and it made him suicidal. See VA treatment records, December 11, 2006, VA mental health telephone encounter. In November 2007, he stated that he wanted his wife to leave, and he acknowledged that they had been separated once for eight to nine years. See VA treatment records, November 9, 2007, VA mental health social worker note. In December 2007, the Veteran stated that his wife’s health was getting worse and that even though she had a sister who would take care of her, she would not leave (the Veteran). See VA treatment records, December 2007. In a February 2008, during a telemed appointment, the Veteran stated that he was no longer attracted to his wife, and felt that their “marriage is one of convenience.” He stated that he had told her this, but that she has refused to accept it. The Veteran reported continuing episodes of irritability and described a that his irritability resulted in a confrontation with another man who was threatening him. He stated that he felt his “short fuse” led him into a situation which he could have avoided. See VA treatment records, February 2008. In June 2008, another VA physician assigned noted that the Veteran was having marital problems and suffering social isolation. In November 2009, the Veteran was noted as being disheveled in appearance, guarded, uncooperative, and his thought process was “fluid.” The Veteran denied suicidal/homicidal ideations as well as visual hallucinations. However, the Veteran did admit to hearing the sounds of “bullets flying past him.” The Veteran underwent a VA PTSD examination in September 2010. At that examination, the Veteran was noted to be clean and his psychomotor activity was unremarkable. His speech was hesitant, and he was cooperative and suspicious of the examiner. His affect was blunted and his mood was anxious. His attention was intact; he was oriented to person, time, and place; his thought process was rambling, his thought content was unremarkable; and he displayed no delusions. As to judgment, he understood the outcome of his behavior; and as to insight, he understood he had problems. He had sleep impairment, but no hallucinations, inappropriate behavior, or obsessive/ritualistic behavior. He was able to interpret proverbs properly. He had daily panic attacks. He did not have homicidal or suicidal thoughts, he had good impulse control, and there were no episodes of violence. As to memory, he had normal remote and immediate memory, and mildly impaired recent memory. The examiner noted that the Veteran had recurrent and intrusive distressing recollections of his combat experience as well as intense psychological distress at the exposure to internal or external cues that symbolize or resemble an aspect of the trauma he was exposed to during combat. The examiner noted difficulty with concentrating and being around others. The examiner also noted that the Veteran’s PTSD symptoms have interfered with his quality of life as well as other important areas of functioning, and that the Veteran was not working due to his pain and PTSD. The Veteran explained that his PTSD made it difficult to work because he found that he could not understand or tolerate other people. He was married for 44 years with periods of separation, did not get along with his wife, and his social contact was mainly with family. In an April 2012 VA Form 21-8940, the Veteran indicated that he had not worked since September 2003 due to his PTSD. See VA Form 21-8940, April 13, 2012. In September 2012, the Veteran called the VA Hotline because he was being evicted from the motel where he was living and needed financial assistance. The Veteran indicated that he was unable to work and otherwise rejected the services that were offered to him. See VA treatment records, September 2012. In January 2013, the Veteran sought pain medication at VA, but was told that he would have to meet with his primary care doctor to manage his pain issues. Although the nurse tried to explain the process of obtaining a bed at the VA domiciliary, the Veteran was not receptive to the information and interrupted the nurse frequently. He was subsequently admitted to the domiciliary later that month. At the time of the admission, the Veteran stated that he had family support, even though he had not seen them in a couple of years. See VA treatment records, January 2013. During a March 2016 VA examination, the examiner indicated that the Veteran had been living in a storage container for the past two to three years, and his PTSD made it hard to find a permanent home. The Veteran and his wife also had been separated for several years and were no longer in contact. The Veteran stated that his last job had been as a groundskeeper in 2004, and that prior to that he had worked as a truck driver. See VA examination, March 30, 2016. The examiner observed that the Veteran’s depression has prevented him from seeking treatment for both his physical and mental illnesses, and that his mental health treatment has been sporadic over the years. The examiner noted that the Veteran was guarded and hypervigilant, and appeared as somewhat paranoid. The examiner stated that the Veteran’s depression, guardedness, and hypervigilance rendered him unable to sustain employment. The Veteran reported that he had been arrested a year earlier for disorderly conduct following an altercation in which he was trying to defend himself. He was incarcerated for three and a half months and was ordered to pay a fine which he had been unable to pay. The Veteran related that he had experienced passive thoughts of suicide over the years but had been too depressed to have the energy to act upon them. Based on the record, the Board finds that an evaluation of 100 percent for the entire period on appeal is warranted at this time. As discussed above, the Veteran has several symptoms that more closely approximate a 100 percent evaluation including, in particular, flat affect, impaired judgment, and impaired impulse control (anger and unprovoked irritability), ongoing suicidal plans and ideation, and near-continuous panic or depression. When seen with other symptoms, including ongoing anxiety, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work or a work like setting), inability to establish and maintain effective relationships, neglect or personal appearance or hygiene, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), as well as being judged as unable to work, lead to an overall disability picture that warrants a 100 percent evaluation. 38 C.F.R. § 4.130, DC 9411 (2018). The medical records in evidence simply confirm the Veteran’s statements regarding the nature and extent of this problem. This is the highest schedular evaluation available under this DC. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-7 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a TDIU rating, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The issue of TDIU is adjudicated below. 2. TDIU 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). Because the Board has found a veteran to be totally disabled as a result of psychiatric disabilities under the rating schedule, there is no need, and no authority, to otherwise rate the Veteran totally disabled on any other basis. See Locklear v. Shinseki, 24 Vet. App. 311, 318, n. 2 (2011), 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 request for a TDIU rating is now moot. In Aronson v. Brown, 7 Vet. App. 153, 155 (1994), the Court applied the jurisdictional restrictions of the case or controversy requirement of Article III of the Constitution of the United States to claims for Veteran's benefits. Relying on Aronson, the Court in Herlehy determined that the appropriate disposition to a moot claim for TDIU is to dismiss the appeal. Herlehy, 15 Vet. App. at 35. For the same reason, the Board will dismiss the Veteran's TDIU claim. There are no other service-connected disorders that would cause unemployability YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel