Citation Nr: 21064949 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 14-00 238 DATE: October 22, 2021 ORDER 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. 2. The claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 26, 2013 is denied. 3. The claim for entitlement to a total disability rating based on TDIU after August 26, 2013, is moot. FINDINGS OF FACTS 1. The Veteran is currently service connected with other specified trauma stressor related disorder and adjustment disorder with depressed mood claimed as PTSD, and the Veteran does not have separate and distinct symptoms to support a separate claim for entitlement to PTSD. A separate rating for PTSD for the same symptoms would violate the Rule Against Pyramiding. 2. Prior to August 26, 2013, the Veteran does not have a combined disability rating of at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more to meet the criteria for a TDIU. 3. Effective August 26, 2013, the Veteran has a total rating for prostate cancer and special monthly compensation. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a). 2. The criteria for a TDIU prior to August 26, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 3. The criteria for dismissal of TDIU, after August 26, 2013 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from February 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The RO granted service connection for other specified trauma stressor related disorder and adjustment disorder with depressed mood in an October 2017 rating decision. The Board notes that the Veteran's claim for entitlement to service connection for headaches was granted in August 2021. This represents a complete grant of the Veteran's appeal in regard to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Accordingly, this issue is no longer before the Board. This matter was previously remanded in May 2018 and the RO issued a Supplemental Statement of the Case (SSOC) in August 2021. This matter is now properly before the Board. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that a claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5). See 79 Fed. Reg. 45,094 (August 4, 2014). Changes brought by the DSM-5 also involved modifications to diagnostic criteria, including how to determine qualifying stressors or onset of PTSD. Therefore, when adjudicating service connection claims based on mental health disabilities that were pending before the AOJ on or after August 4, 2014, the Board must ensure that the Veteran received an adequate VA examination or medical opinion in light of the DSM-5. See Molitor v. Shulkin, 28 Vet. App. 397, 410-11 (2017). VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (March 19, 2015). The provisions of 38 C.F.R. § 4.125(a) require that a mental disorder diagnosis must conform to the Fifth Edition (DSM-5). See 38 C.F.R. §§ 4.125, 4.130. 1. Entitlement to service connection for PTSD. The Veteran contends that he has PTSD that can be attributed to his military service. In October 2017, the RO granted service connection for other specified trauma stressor related disorder and adjustment disorder with depressed mood. In a February 2018 hearing before the undersigned Veterans Law Judge (VLJ), the Veteran continued to argue entitlement to service connection for PTSD. Although the Veteran was granted service-connection for a psychiatric disorder, the RO did not grant service connection for PTSD and therefore the Veteran's claim for PTSD is still before the Board. The Board remanded the Veteran's claim for PTSD in May 2018 for further development. The Board has also thoroughly and sympathetically reviewed the Veteran's entire claims file. In December 2016, the Veteran was afforded a VA examination which resulted in a finding that the Veteran has a diagnosis for other specified trauma and stressor related disorder. In a December 2019, psychology note, the Veteran's treating physician noted that the Veteran does have a current diagnosis of PTSD and is taking mirtazapine. In a February 2020 medical note, the Veteran's physician noted that upon observation, there is no evidence of delusional thoughts, disordered perceptions, illusions, obsessions, or compulsions. The physician went on to say that there is evidence of PTSD symptoms in the form of trauma related flashbacks, nightmares, repetitive recalls of trauma events, social and emotional withdrawal, isolation, and dissociative episodes as well as symptoms of increased autonomic arousal. In August 2021, the Veteran was afforded a new VA examination. The examiner determined that the Veteran does currently meet the DSM 5 criteria for Other Trauma and Stressor Related disorder. The examiner further determined that the Veteran's impairment from mental health issues is not significant enough to interfere at a clinically significant level to meet DSM 5 criteria for PTSD. The examiner opined that the Veteran's PTSD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that the Veteran's level of occupational and social impairment with regards to all mental diagnoses was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted that the Veteran has symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events. In reviewing the Veteran's entire claims file there is no evidence of record showing that the Veteran has separate and distinct symptoms when considering the symptoms related to the Veteran's previously diagnosed PTSD and the Veteran's diagnosis of other specified trauma and stressor related disorder. The symptoms within the Veteran's claims file that are attributed to PTSD in the February 2020 physician note are not separate and distinct from the symptoms identified in the December 2016 VA examination. The December 2016 examiner noted depressed mood, anxiety and chronic sleep impairment as the Veteran's symptoms. The February 2020 examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, as well Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or, more appropriately in this case, the "same manifestation" under various diagnoses is to be avoided. For purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). The Board has thoroughly and sympathetically reviewed the Veteran's claim for service connection of PTSD. The Board finds that the symptoms presented in support of the Veteran's claim for PTSD are not separate and distinct from the Veteran's service-connected other specified trauma stressor related disorder and adjustment disorder with depressed mood. The symptomatology attributable to other specified trauma stressor related disorder and adjustment disorder with depressed mood are the same as those attributed to the diagnosis of PTSD that is in the Veteran's medical records. The Board finds that symptoms of depressed mood, anxiety, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and chronic sleep impairment are symptoms that overlap with a diagnosis of PTSD. The Board finds that the elements and symptomatology of both diagnoses are overlapping and therefore violates the rule of pyramiding. The Board finds that a separate rating for PTSD would violate the rule Against Pyramiding. Providing ratings under Diagnostic Code 9499-9411 and Diagnostic Code 9411 for the same symptoms would constitute pyramiding. As such, the Board will not provide separate ratings for the Veteran's mental health symptoms, as it would violate the rule against pyramiding by compensating the Veteran twice for the same symptoms. 38 C.F.R. § 4.14. Thus, the Board finds a preponderance of the evidence is against granting the Veteran's claim for entitlement to service connection for PTSD. TDIU A request for TDIU "is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran has stated that he is unable to work in the public sector due to his service-connected disabilities. TDIU is raised whenever a claimant seeks a higher disability evaluation and "presents cogent evidence of unemployability." Comer v. Peake, 553 F. 3d 1362, 1367 (Fed. Cir. 2009). A total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). 2. TDIU prior to August 26, 2013. The Board has reviewed the evidence of record and finds that prior to August 26, 2013 the Veteran was service connected for residuals of prostate cancer with a disability rating of 40 percent disabling and service connected for diabetes mellitus type 2 with a disability rating of 20 percent. The Veteran did not have sufficient additional disabilities to reach the requirement of a combined disability rating of 70 percent prior to August 26, 2013, under 38 C.F.R. § 4.16(a). Furthermore, there is no evidence of record that the Veteran was unemployable due to his service-connected disabilities prior to August 26, 2013. The cornerstone for a claim of entitlement to an award of TDIU benefits is a showing that the Veteran is unable to obtain or maintain a substantially gainful occupation as a result of service-connected disability. According to an October 2012 VA examination, while the Veteran was currently unemployed, he retired from his usual occupation as a rigger in 2007. There is no indication that the Veteran retired or quit working as a result of his service-connected disabilities. The Veteran has not provided any testimony or evidence to support such a finding either. Therefore, the Board finds that a preponderance of the evidence is against granting the Veteran's claim for TDIU prior to August 26, 2013 the date of the assignment of a 100 percent disability evaluation for the Veteran's prostate cancer. 3. TDIU after August 26, 2013. The grant of a 100 percent schedular disability rating for prostate cancer, with Special Monthly Compensation (SMC) benefits, renders the claim for a TDIU moot. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In the May 2018 remand, the Board noted that pursuant to Rice, part and parcel to the claim was the matter of whether a TDIU as a result of the service-connected disabilities was warranted. However, the claim of entitlement to a total disability based on individual unemployability has been rendered moot by the award of a 100 percent schedular evaluation for prostate cancer. See Bradley v. Peake, 22 Vet. App. 280 (2008). The United States Court of Appeals for Veterans Claims (Court) has recognized that 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), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See 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). However, a grant of a 100 percent disability 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) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. In this case, the Veteran has been granted SMC under 38 U.S.C. § 1114 based on housebound criteria from August 26, 2013. Accordingly, the grant of a 100 percent rating for the Veteran's service-connected prostate cancer and SMC on account of being housebound renders the issue of entitlement to TDIU moot. Bradley v. Peake 22 Vet. App. 280, 293 (2008); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). As there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal of the claim for TDIU after August 26, 2013 is moot and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.