Citation Nr: 20028848 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 07-10 038 DATE: April 24, 2020 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to an earlier effective date of February 21, 2006 for the award of a 100 percent rating for schizophrenia is granted. Entitlement to total disability evaluation based on individual employment (TDIU) from February 21, 2006 to February 16, 2012 is dismissed. FINDINGS OF FACT 1. The Veteran’s PTSD is related to his fear of hostile military or terrorist activity. 2. On February 21, 2006, the date he filed his initial claim for benefits, the Veteran’s schizophrenia was manifested by total occupational and social impairment. 3. Entitlement to TDIU from February 21, 2006 to February 16, 2012 is rendered moot by the grant of a 100 percent schedular rating for schizophrenia. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. § 3.304(f)(5). 2. The criteria for an earlier effective date of February 21, 2006 for the award of a 100 percent rating for schizophrenia are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.400, 4.3, 4.126, 4.130, Diagnostic Code (DC) 9201. 3. The criteria for dismissal of the appeal as to the issue of entitlement to a TDIU from February 21, 2006 to February 16, 2012 are met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1995 to October 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2011 and February 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the January 2011 rating decision, the RO denied service connection for an acquired psychiatric disorder, to include schizophrenia and PTSD, which the Veteran appealed to the Board. Following a remand in September 2012, the Board denied the claim in December 2013. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In January 2015, pursuant to a Joint Order for Partial Remand filed by the parties, the Court vacated and remanded the Board’s decision, and in December 2015, the Board issued a decision that granted service connection for schizophrenia and remanded the issue of entitlement to service connection for PTSD. In the February 2016 rating decision, the RO granted service connection for schizophrenia at 70 percent disabling, effective February 21, 2006, and at 100 percent disabling from February 16, 2012. The Veteran thereafter appealed the effective date of the 100 percent rating, asserting it should go back to his original claim dated in February 2006. In submitting his April 2018 VA Form 9, the Veteran’s attorney raised the issue of entitlement to a TDIU from February 21, 2006 to February 16, 2012, which the Board remanded in March 2019. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for PTSD is granted. Service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a Veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f), 4.125(a). If a stressor claimed by the Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). Regarding the first element of service connection, there is evidence for and against a current diagnosis of PTSD. In favor of the claim are multiple VA treatment records in which the treating clinician diagnoses PTSD. See, e.g., May 2008, March 2009, June 2009, December 2010, July 2012, March 2014, April 2014, August 2014 VA Treatment Records. In contrast, some VA clinicians and the February 2012 and February 2013 VA examiners found that the Veteran’s symptoms met the diagnostic criteria for schizophrenia but did not meet the diagnostic criteria for PTSD. See December 2005 VA Treatment Records; see also February 2006 Social Security Administration (SSA) Medical Records; see also February 2012, February 2013 VA Examinations. The Board has no reason to afford more probative value to one opinion over the other, and affording the Veteran the benefit of the doubt, the Board concedes the current presence of PTSD, and the first element of service connection is established. As for the second element of service connection, readjustment counselor S.S. and VA psychiatrist G.M. both relate the Veteran’s PTSD to his service in the Navy. See December 2010 letter from S.S., MSW; February 2018 VA Treatment Record. Thus, the second element of service connection for PTSD is established. See 38 C.F.R. § 3.304(f). Regarding the final element, credible supporting evidence that the claimed in-service stressor occurred, the Veteran has described stressors relating to his service in the Persian Gulf, including receipt of hostile fire. See December 2009, September 2011, March 2012, June 2012, March 2014 VA Treatment Record; see also January 2013 VA Form 21-0781; see also May 2010 Private Treatment Record. He has submitted evidence of hostile fire pay for November 1998, deck logs showing that his ship, the USS Arleigh Burke (DDG-51), sailed in the Persian Gulf in November 1998, and a statement from a VA counselor confirming the ship was in combat in 1998.” See November 1998 Deck Logs; see also December 1998 Leave and Earnings Statement; see also December 2010 Readjustment Counselor Letter; see also September 2018 VA Treatment Record. Deck logs from the USS Arleigh Burke (DDG 51) show instances of white smoke with the ship running on single generator operations, a bomb threat, multiple engineering casualties, and gunfire, including close-in weapons system and firing from mounts 21 and 22 with 100 rounds expended during the period in question. See October 1998, November 1998, December 1998 Deck Logs. While Dr. G.M. did not explicitly state that the Veteran’s fear of hostile military action was adequate to support his diagnosis of PTSD, a competent PTSD diagnosis is presumed to include the adequacy of the symptomatology and the sufficiency of the stressor. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997). In view of the Veteran’s consistent statements and supporting documentation regarding in-service stressors, as well Dr. G.M’s confirmation of the Veteran’s PTSD diagnosis based on same, the Board finds that there is not more than reasonable doubt that Dr. G.M., a VA psychiatrist, confirmed that the Veteran’s PTSD is related to stressor related to the Veteran’s fear of hostile military or terrorist activity that is adequate to support his diagnosis of PTSD. Moreover, given the above-cited deck logs of record, the Board finds the February 2012 and February 2013 VA examiners’ statement that his stressors are not related to fear of hostile military or terrorist activity to be of little probative value. In sum, the Board finds that the Veteran’s lay testimony has adequately established the occurrence of that in-service stressor, that the claimed stressor is consistent with the circumstances of the Veteran’s service, and that there is not clear and convincing evidence that the stressor did not occur. See 38 C.F.R. § 3.304(f)(3). Thus, the final element, and all elements for service connection for PTSD, are met. 2. Entitlement to an earlier effective date of February 21, 2006 for the award of a 100 percent rating for schizophrenia is granted. The effective date of an award of VA compensation that is based on an original claim, such as here, shall be assigned in accordance with the facts found, but an effective date will not be assigned that is earlier than the date of receipt of the application for compensation. 38 U.S.C. § 5110 ; 38 C.F.R. § 3.400. The Veteran asserts that the assignment of the 100 percent rating for his schizophrenia should go back to February 21, 2006, when he filed his original claim. The Board agrees. The Veteran’s symptoms with schizophrenia are rated pursuant to DC 9201. See 38 C.F.R. § 4.130. A 70 percent evaluation is assigned when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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 an inability to establish and maintain effective relationships. A 100 percent evaluation is assigned 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 ability 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. The current 100 percent rating is from February 16, 2012, the date of a VA psychiatric examination. However, several records dated from 2006 to 2012 illustrate symptomatology consistent with that found at the time of the February 2012 VA examination supporting the Veteran’s 100 percent rating, including impairment in thought processes or communication and persistent delusions or hallucinations. Specifically, at the Veteran’s January 2012 VA neuropsychological evaluation, the evaluator observed that the Veteran’s thought processes were frequently disorganized and tangential, and that the Veteran had a tendency to ramble about topics unrelated to the evaluation. He seemed irritable and suspicious. See January 2012 VA treatment record. During this evaluation, the Veteran scored low on overall brain functioning, which tested his incidental learning, visual motor speed, and information processing abilities. Id. Critically, the examiner noted review of records dating from the 1990s, noting that the Veteran experienced auditory hallucinations, ideas of references, thought insertion and paranoia during this period, well before the Veteran’s initial 2006 claim for benefits. A January 2012 Vet Center record notes the Veteran is “very tangential and he would need continuous redirection.” See January 2012 Vet Center record. In a November 2011 appointment with his social worker, the Veteran acted pleasant but displayed paranoid symptoms, such as distrust in the VA RO relating to his benefits and that Vietnam Veterans were following him. He also started to cry and had to excuse himself to calm down. See November 2011 VA treatment record. The Veteran admitted that he did not take his medicine in the morning because he wanted the staff to see his symptoms. Id. Also, the Veteran reported that he regularly slept for two hours, got up to make sure the house is safe, then slept for two more hours before he got up to check the house again. See Id. In September 2011, the Veteran’s social worker noted that he was misinterpreting benign events as personally threatening. See September 2011 VA Medical Center Report. For example, the Veteran theorized that the VA was trying to keep him from getting services when the clinic canceled his lab work when he was not able to be transported to the clinic. See id. Furthermore, during November 2010 treatment, the examining clinician stated that the Veteran “has ongoing auditory hallucinations along with some paranoia and disorganized thinking.” A May 2008 VA mental health treatment record indicates that the Veteran had difficulty sleeping because of the noises in his head at night. The Veteran told the clinician that he believed he was being monitored by a secret society because he has seen many military or police cars appear wherever he is, and the television tells him that he can run but cannot hide. See February 2006 VA Treatment Records. In totality, these findings are demonstrative of gross impairment in thought processes and persistent delusions or hallucinations throughout the entire appeal period. The Veteran also displays a strong obsession to things related to the time period around when he served in the military. When in a bookstore in September 2011, the Veteran reported to a clinician that went straight to the war section to find a book with his mission Operation Desert Fox, and the clinician subsequently had difficulty with multiple attempts to redirect him. See September 2011 VA treatment record. He was also looking for old magazines from the time before the conflict in Iraq began because he wanted to relive his past, like “sports heroes” do. Id. In visits with a family therapist, the Veteran usually started the sessions describing the time when he was on the ship with only three people on board and was very tangential with his speech topics. See January 2011 and March 2012 VA Treatment Records; October 2010 VA examination report. In January 2010, the Veteran was escorted out of the VA hospital because the nurse believed his behavior was “threatening.” See January 2010 private treatment records. The Veteran got verbally hostile as he was waiting to get help. Id. The Veteran’s thoughts that are preoccupied in the past and inability to handle doctor visits and the public is demonstrative of grossly inappropriate behavior and gross impairment in communication throughout the appeal period. Occasionally, the Veteran has been in danger of hurting himself or others, as he has endorsed suicidal ideation and homicidal thoughts during the appeal period. See June 2007, June 2009, October 2009, and July 2012 VA treatment records. Additionally, the record demonstrates an intermittent inability to perform activities of daily living. In a March 2012 meeting with a family therapist, the Veteran stated that he usually soils his bed at night. See March 2012 Vet Center record. SSA records dated in 2007 indicate that the Veteran’s sister reminds him to take his medicine, take a bath, change clothes, shave, and get a haircut. See March 2007 SSA Psychiatric Review. The Veteran reported that he takes a quick shower because he hears voices in the bathroom. Id. He stated that he stays in bed until noon, eats something, and does not care about his appearance and does not like to shave or cut his hair. Id. He reported that he does not pay bills anymore because he has no desire to deal with money. Id. He has not worked since before the appeal period, and has been deemed unemployable due to his psychiatric issues. See October 2010 VA Examination report; SSA records; December 2006 VA treatment record. The Veteran’s mother compared the Veteran’s personality and mood before and after service, stating that the Veteran used to live without fear of people threatening his life and that he was a very productive teen in high school with a part-time job and on a sports team. See April 2012 Lay Statement. The Veteran’s mother recounted that when the Veteran enlisted, he was in good health, but his mental and physical illnesses began while serving on the warship. Id. The Veteran’s mother emphasize the continuity of his sickness from shortly before separating from service, when he had severe behavioral problems which led to his discharge, to the present-day. Id. She noted that now he is always sad and believes that only bad things will happen, and is in fear of people following him or threatening his life. Id. The Veteran’s mother’s account is further support of the Veteran’s intermittent inability to perform activities of daily living throughout the appeal period. The February 2012 VA examiner found that the Veteran’s psychiatric disability was manifested by symptoms such as anxiety, suspiciousness, chronic sleep impairment, mild memory loss, intermittent illogical, obscure or irrelevant speech, gross impairment in thought process and communication, and difficulty in adapting to stressful circumstances. The above-cited evidence demonstrates that the severity of the Veteran’s disability has not changed since he filed his initial claim for benefits in 2006. Therefore, a 100 percent rating for the Veteran’s psychiatric disability is warranted from February 21, 2006. 38 C.F.R. § 3.400. 3. Entitlement to a TDIU from February 21, 2006 to February 16, 2012 is dismissed as moot. As the Veteran is now in receipt of a 100 percent disability rating for his psychiatric disorder throughout the entire appeal period, the issue of entitlement to a TDIU prior to 2012 is moot, and his appeal as to this issue is dismissed. See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.S.M. Ramirez, 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.