Citation Nr: 21062054 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-47 698 DATE: October 6, 2021 ORDER Entitlement to a 100 percent disability rating for post-traumatic stress disorder (PTSD) from January 26, 2012, is granted. Beginning June 2, 2017, entitlement to special monthly compensation (SMC) at the housebound rate is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, his PTSD has resulted in total occupational and social impairment throughout the period on appeal. 2. In addition to the 100 percent schedular rating for PTSD awarded herein, the Veteran has had other separate and distinct ratings involving different anatomical segments or bodily symptoms, which, under the combined ratings table, combine to at least 60 percent beginning June 2, 2017. 3. The award of a 100 percent disability rating for PTSD has rendered the issue of entitlement to TDIU moot because PTSD is the service-connected disability underlying his claim for TDIU. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent disability rating for PTSD from January 26, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. Beginning June 2, 2017, the criteria for entitlement to SMC at the housebound rate have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). 3. The claim for TDIU has been rendered moot by virtue of the grant of a 100 percent initial disability rating for PTSD. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified before the undersigned at a hearing via videoconference. This decision is being rendered prior to the production of a transcript of that hearing as part of the Board's "One Touch" program; given the favorable outcome, however, the Veteran is not prejudiced. 1. PTSD The Veteran asserts that he is entitled to a higher rating for his service-connected PTSD. The Board notes that the RO granted service connection for PTSD in a September 2013 rating decision, which assigned a 70 percent rating from January 26, 2012. Although the Veteran did not file a notice of disagreement with this decision, new and material evidence regarding the severity of the Veteran's PTSD symptoms, including a June 2014 VA examination, was associated with the claims file during the appellate period. As such, the Veteran's claim for an increased rating for PTSD is more appropriately characterized as a claim for an initial rating in excess of 70 percent. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, entitlement to service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Here, the Veteran's PTSD disorder is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent disability rating is warranted where the disorder is manifested by 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 that is 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. Id. A 100 percent disability rating is warranted when there is a total occupational and social impairment, due to such symptoms as 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. A veteran "may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Symptoms listed in the General Rating Formula serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). Here, the evidence of record includes VA treatment records, VA examination reports, lay and buddy statements, and an independent vocational evaluation. In July 2012 VA treatment records, the Veteran reported that he had struggled with hypervigilance, cautiousness, and guardedness since being in the military, that he did perimeter checks of his home at least twice a night, and that he would get up at least a dozen times a night to check his alarm panel. He also reported that he struggled with flashbacks, anger, irritability, recurrent and intrusive distressing recollections, intense psychological and physiological reactivity upon exposure to certain internal or external cues, avoiding people, places, and activities that aroused recollections of trauma, and feelings of detachment or estrangement from others. He explained that he had previously worked as a police officer but that he retired in 1992 after reaching the point where he did not want to be around people anymore. Additionally, he described not being able to speak to people in social situations because of his hypervigilance. An April 2013 letter from his VA treatment provider indicated that the Veteran continued to struggle with recurrent and intrusive memories, distressing dreams, intense physiological and psychological distress upon exposure to cues that symbolized or resembled aspects of his traumas, avoidance behaviors, anhedonia, feelings of detachment, emotional numbness, a sense of a foreshortened future, difficulty concentrating, irritability, anger, hypervigilance, and an exaggerated startle response. He had developed his own way of managing his symptoms over the years, mainly isolation and avoidance of others. His symptoms were chronic in nature. At an August 2013 VA examination, he reported to the VA examiner that he had been married three times and struggled in all of his marriages due to emotional withdrawal, irritability, and "complete social isolation." He described very little interest and intense discomfort in all social activities. Once more, he stated that he had worked as a police officer for over 20 years but retired in 1992 because he was having a hard time tolerating interactions with others in the workplace. Since that time, he reported, he had been in "almost complete social isolation." He endorsed symptoms such as a depressed mood, anxiety, suspiciousness, chronic sleep impairments, difficulty with concentration and focus, a flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful work settings, passive suicidal ideation, and periods of irritability. The examiner noted that these problems had led him to retire early and caused complete social isolation and marital discord. In October 2013 correspondence, the Veteran reported that he had issues with unprovoked anger and irritability with people. Similarly, in a May 2014 lay statement, he reported that he was suspicious of other people and concerned for his safety in public places. He indicated that he was extremely irritated and had anger issues that caused him to avoid contact with people or crowds, as well as unprovoked outbursts towards people and events. He avoided "any type of social contact with people." The Veteran's sister made similar statements in a May 2014 buddy statement. The Veteran was afforded another VA examination in June 2014. He described not having any regular contact with friends or neighbors and being called "antisocial." He also had minimal contact with his relatives. During his time as a police officer, he was generally undercover because he could not handle dealing with the general public and his employers were concerned about his unwillingness to socialize. He described being wary of others and having "considerable anger." He endorsed anxiety attacks almost every time he encountered people he did not know and had mood swings. In an August 2015 VA treatment record, the Veteran reported that he was interested in medication for his PTSD symptoms, particularly his irritability, hypervigilance, and startle response issues. He indicated that he avoided crowds, did not like being surprised by things, was less outgoing, and had difficulty forming close relationships. The Veteran submitted a private vocational evaluation to the record in September 2015. The vocational expert indicated that he could not work in jobs that involved dealing with other people, performing work under pressure, or making decisions under stress. He needed to work in jobs that would let him work alone or apart in physical isolation from others, but no such skilled or unskilled jobs were estimated to be available in the regional or national economy. He had various emotional deficits, including irritability and avoidance behaviors that negatively impacted his ability to maintain competitive employment. He reported leaving previous jobs because he could not tolerate crowds, people, coworkers, the public, or traveling on public carriers. He did not like being near a lot of people, as it made him uptight and nervous, and avoided stimulating environments. He was afforded another VA examination in June 2017. The June 2017 VA examiner noted that he previously worked as a police officer but that he worked from midnight to 8 a.m. the entire time to avoid the general public. He gave a history of depression, anxiety, panic, and suicidal ideation. He slept poorly, woke up constantly to check the windows and doors of his house, and had a nonexistent libido. He reported, "I just don't go out." He did not cook, clean, or shop for groceries, and if he went out to eat, it was always at a drive-thru restaurant. He avoided others due to anxiety, suspicion, anger, and paranoia. He endorsed symptoms including a depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, and difficulty in establishing or maintaining effective work and social relationships. In VA treatment records from between June 2017 and March 2018, the Veteran reported similar symptoms to his psychiatrist. Significantly, he reported in November 2017 that he had a "temper problem" and his wife was "tired of it," but that he was not willing to attend a PTSD support group because he did not like most people and did not socialize with others. He reported that although he had moved to Florida in 2013, he did not make friends or get involved in any activities, but instead isolated at home, and was not interested in making any changes. Based on the foregoing, the Board finds that the evidence of record is at least in equipoise as to the level of his psychiatric disability. Resolving all reasonable doubt in his favor, his disability picture is comparable to a 100 percent rating for service-connected PTSD throughout the entire period on appeal. To that end, his symptoms of irritability, anger, paranoia, anxiety, avoidance, suspiciousness, and difficulty in establishing or maintaining effective relationships are severe, and these have occurred continuously since the inception of his original claim for service connection. Indeed, his symptoms have precluded him from working, leaving his home, or from socializing with most people, even his own family members. Affording him the benefit of the doubt, the Board finds that the Veteran has been totally occupationally and socially impaired by his PTSD, commensurate with a 100 percent rating under diagnostic code 9411. 2. SMC VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). This duty to maximize benefits requires VA to assess all a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran's PTSD is now 100 percent disabling. Beginning June 2, 2017, he had other service-connected disabilities that were separate and distinct from the 100 percent rating for PTSD, involved different anatomical segments or bodily systems, and, under the combined ratings table, resulted in a combined rating of at least 60 percent from June 2, 2017. 38 C.F.R. §§ 3.350(i)(1), 4.25. As such, SMC at the housebound rate is warranted from June 2, 2017, but no earlier. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). 3. TDIU Additionally, the Veteran asserts that he is entitled to TDIU because his service-connected PTSD symptoms have precluded him from working. However, the Veteran's current claim for TDIU and his claim for an increased rating for PTSD have been recognized as essentially arising at the same time and involving the same evidence. As such, a grant of an increased 100 percent schedular rating for PTSD renders the claim for TDIU moot. The appeal as to the TDIU issue is thus dismissed. The Board notes that the Veteran would not be entitled to TDIU and a 100 percent rating based on the same disability at the same time. A TDIU rating may proceed where the TDIU rating is potentially available for a disability other than the disability for which a 100 percent rating is in effect. See Bradley, 22 Vet. App. at 280. Here, however, the evidence is clear that the Veteran's service-connected PTSD is the cause of his unemployability. The evidence does not demonstrate, and he has not asserted, that his service-connected hearing loss, tinnitus, diabetes, or peripheral neuropathy cause his unemployability. As such, the issue of TDIU must be dismissed as moot. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.