Citation Nr: 20007599 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 19-06 562 DATE: January 29, 2020 ORDER An initial disability rating of 100 percent for post-traumatic stress disorder with alcohol use disorder, unspecified cannabis-related disorder and substance-induced bipolar and related disorder (PTSD) is granted. FINDING OF FACT The Veteran’s PTSD resulted in virtual isolation in the community and produced totally incapacitating psychoneurotic symptoms from April 28, 1981. CONCLUSION OF LAW The criteria for an increased initial rating of 100 percent for PTSD, effective April 28, 1981, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.132, Diagnostic Code 9411 (1980). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran’s Contentions The Veteran contends that he is entitled to a 100 percent rating for his PTSD from the effective date of his claim, April 28, 1981. Increased initial rating for PTSD Generally, disability ratings are determined by applying the rating criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Here, the Veteran was awarded an initial disability rating of 30 percent, effective April 28, 1981. The rating was increased to 50 percent effective May 28, 1998 and 100 percent effective November 19, 2015. The Board notes that the rating criteria for evaluating mental disorders were amended during the claim period. A new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03. If the former version of a rule is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to November 7, 1996, Diagnostic Code 9411 for PTSD was rated under the General Rating Formula for Psychoneurotic Disorders. 38 C.F.R. § 4.132, Diagnostic Code 9411. Under this General Rating Formula, a 30 percent rating required definite impairment in the ability to establish or maintain effective or wholesome relationships with people, and psychoneurotic symptoms that result in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. The term “definite” has been defined as “distinct, unambiguous, and moderately large in degree,” representing a degree of social and industrial inadaptability that was “more than moderate but less than rather large.” VAOPGCPREC 9-93, 59 Fed. Reg. 4752 (1994); see also Hood v. Brown, 4 Vet. App. 301 (1993). A 50 percent rating required considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and psychoneurotic symptoms that result in such reduction in reliability, flexibility, and efficiency levels as to produce considerable industrial impairment. A 70 percent evaluation required severe impairment in the ability to establish and maintain effective or favorable relationships with people; the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation required virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment. Further, the United States Court of Appeals for Veterans Claims (Court) held that these criteria provide three independent bases for granting a 100 percent disability evaluation. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994). Note 1 provided that social impairment per se will not be used as the sole basis for any specified percentage evaluation, but is of value only in substantiating the degree of disability based on all of the findings. 38 C.F.R. § 4.132, Diagnostic Code 9411. As explained below, a total rating is being granted pursuant to the old regulations and, as such, further discussion of the amended rating criteria is not required. The Veteran submitted a November 2015 evaluation by a private psychiatrist. The psychiatrist reviewed the relevant medical and service records and personally examined the Veteran. The psychiatrist noted that the Veteran met the criteria for PTSD under the DSM-V from the time of his discharge from service. The Veteran reported and the records confirm that the Veteran was administratively discharged from the service after he experienced what the psychiatrist referred to as a “severe behavioral disturbance” following his tour of duty in Vietnam. The psychiatrist noted that the Veteran’s report, medical records and lay statements from his friends and family described the Veteran as living a “completely bizarre lifestyle” after service by living in tents in the woods or condemned shelters, eating dog food and being completely isolated from society. The psychiatrist noted the Veteran’s difficulty keeping a job or having relationships and exhibiting symptoms of extreme anger, depression, isolation and excessive alcohol use. The psychiatrist concluded that the Veteran’s bizarre behavior and removal from society was a result of his service-induced PTSD and that his symptoms were 100 percent disabling. The psychiatrist issued an addendum report in October 2019. In that report, the psychiatrist described the Veteran’s PTSD as “severe and pervasive, impacting all aspects of his functioning, since his trauma exposure.” The psychiatrist again described the Veteran’s symptoms as reflected in his medical records and noted that the Veteran had never been able to participate in any aspect of life, either occupationally or socially, since his discharge from service. The evidence submitted by the Veteran supports the conclusions of the private psychiatrist. An August 1981 lay statement from a friend of the Veteran noted that the Veteran had been depressed “for quite some time” and was no longer the same good-natured person. In an April 1982 hearing, the Veteran testified that he had been living in the woods for most of the time since his discharge, he was unable to maintain a full-time job and his temper issue and violent tendencies cost him jobs and girlfriends. In a lay statement submitted in October 1999, a friend of the Veteran noted that he had become very withdrawn, had lived in a tent in the woods and was completely secluded, eating and living like an animal at times. A lay statement from a friend submitted in March 2002 described the Veteran as having trouble keeping a job, being afraid of crowds and being unable to maintain relationships. The Veteran submitted a lay statement in March 2006 noting that he had been living in a truck since 2004 and spent the first 20 years after his discharge from service without stable housing. An August 2006 lay statement from a friend described how the Veteran used to camp outside for much of the 70s and 80s, lived at times in his pickup truck and stayed on the floor of the friend’s body shop at times. The Veteran also submitted his earnings report reflecting his meager annual income since his discharge from service. VA treatment records and examinations confirm the Veteran’s unstable housing and social isolation following discharge. A July 1981 VA examination noted the Veteran’s symptoms as restlessness, paranoia, temper tantrums, excessive worrying and drinking, being absent-minded and having a desire to isolate with no communication with his family or members of the opposite sex. The Veteran reported to a VA examiner in January 2007 that he was violent and abusive to girlfriends, drank excessively, was homeless and had only sporadic employment doing odd jobs after his discharge from the military. The VA treatment records reflect that the Veteran had extensive treatment for his mental health issues starting in 1998. In December 2007 the Veteran reported his adjustment problems after service, lack of stable housing or employment and excessive drinking. From the entirety of the evidence of record, the Board concludes that the Veteran’s PTSD adversely affected all of the Veteran’s contacts in his community, produced totally incapacitating psychoneurotic symptoms, and made him unable to retain employment since the beginning of the appeal period. The Board finds the opinions expressed by the Veteran’s private psychiatrist probative as to the ongoing severity of the Veteran’s PTSD symptoms from discharge. The record reflects that after discharge, the Veteran experienced social isolation, lack of stable housing, violent tendencies and sporadic, marginal employment. Under the General Rating Formula for Psychoneurotic Disorders pursuant to 38 C.F.R. § 4.132, which was in effect in April 1981, such evidence is indicative of a 100 percent rating. Applying these criteria from the date of service connection forward leads to a complete grant of the benefit sought on appeal. Based on the foregoing, a 100 percent initial rating for PTSD is granted effective from April 28, 1981. The Veteran’s request for a TDIU is rendered moot by the award of a 100 percent rating for the entire appeal period. See Helehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for same period). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.