Citation Nr: 21065171 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-65 718 DATE: October 25, 2021 ORDER Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder with depression is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's PTSD does not result in total social and occupational impairment. 2. In September 2020, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940; more than a year has lapsed since the initial request, and she has not submitted the requested evidence and information. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for service-connected post-traumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. Entitlement to a TDIU is denied. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to November 1969, including service in Thailand. The Board testified at a Board hearing on May 2020 before the undersigned Veterans Law Judge (VLJ). The case was remanded in an August 2020 Board decision for additional development. The case has now returned for further appellate review. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 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 benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, 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. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder with depression. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran's symptoms most closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. Under the General Rating Formula for Mental Disorders a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. 38 C.F.R. § § 4.130, Diagnostic Code 9411. A 70 percent evaluation is assigned when a veteran's mental disability causes 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); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a veteran's mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency must assign a rating based on all the 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. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. §§ 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The Veteran's actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). During the May 2020 Board hearing, the Veteran explained that experiences periods of irritability and anger due to PTSD. He also testified that his symptoms include suicidal ideation. In November 2017, the Veteran was afforded a VA examination. He denied audio and visual hallucinations. His speech was fluent, goal directed, normal in rate and tone, as well as soft spoken. His thought process was normal and without psychotic process. The Veteran's insight appeared good and judgment appeared adequate. The Veteran experiences recurrent involuntary and intrusive distressing dreams that cause intense psychological distress. He also experiences persistent exaggerated negative beliefs, persistent negative emotional state, diminished interest in or participation in significant activities, and persistent inability to experience positive emotions. The Veteran's symptoms include hypervigilance, exaggerated startle response, sleep disturbance. He also has anxiety, depressed mood, flattened affect, and disturbances in mood and motivation. In March 2021, the Veteran was afforded a VA examination. He appeared appropriately groomed and dressed, maintained good eye contact, and related well to the evaluator. The Veteran did not demonstrate evidence of a thought disorder or gross cognitive or memory deficit. A slightly dysphoric mood was observed, and the Veteran appeared fully oriented. He denied audio and visual hallucinations. He described experiencing symptoms of hyper-vigilance, exaggerated startle response, sleep disturbance. The examination revealed that the Veteran also has anxiety, suspiciousness, depressed mood, flattened affect, and chronic sleep impairment. The examiner opined that the Veteran has 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. At that time, he denied any current suicidal ideation. He explained that he gets depressed easily and that a neighbor visits when there is a concern about his health. The Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Board finds that the Veteran's symptoms are consistent with a 70 percent rating. The preponderance of the evidence demonstrates the level of impairment associated with does not more nearly approximate the criteria for a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, the evidence does not demonstrate that the Veteran is totally socially impaired. He did not exhibit grossly inappropriate behavior, gross impairment in thought processes or communication, peristent hallucinations, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, or own name. While the Veteran avoids crowds and limits his activity around people, he maintains friendships with daily contact, is able to maintain person hygiene. See May 2020 Board Transcript. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a rating higher than 70 percent. Hence, the benefit of the doubt rule does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The criteria for a 100 percent or higher rating are not met and the appeal must be denied. 2. Entitlement to a total rating due to individual unemployability. The Board also notes that a TDIU has previously been raised by the record and is part of the Veteran's PTSD increased rating claim on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Given the RO's grant of a 100 percent permanent and total evaluation for coronary artery disease, and the Board's grant of a 70 percent rating disability for the Veteran's psychiatric disability effective September 22, 2016, the date the claims were submitted the issue of entitlement to a TDIU is moot. Additionally, the Veteran did not submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability as requested. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent her from securing or following a substantially gainful occupation, and the treatment he has received for the disability(ies). The veteran is further asked to supply information about her employment, including dates when her disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. VA Form 21-8940 also requests information regarding the veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether the veteran has attempted to obtain employment since he became too disabled to work. The critical facts at this stage are clear. The Veteran has not provided the information or VA forms necessary for VA to adjudicate his claim of entitlement to a TDIU rating. Although the record contains some information regarding her employment history, the Veteran has not provided all of the information necessary to adjudicate her claim for a TDIU rating. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of his failure to cooperate the Veteran has abandoned his claim. As such, the Board finds that the appeal must be denied. The Board recognizes that, although 38 C.F.R. § 4.16 (a) provides that a TDIU is only warranted where the schedular rating is less than total, an award of a 100 percent disability rating 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 SMC pursuant to 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating and has an additional disability ratable at 60 percent or higher, or is permanently housebound. The Court held in Buie and Bradley v. Peake, 22 Vet. App. 280, 294 (2008) that a 100 percent schedular rating does not render TDIU moot if the TDIU would assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114 (s). A TDIU would not assist the Veteran any further, as the Board finds he is already entitled to an SMC based the 100 percent rating the Veteran was granted for his coronary artery disease and the 70 percent rating assigned for his psychiatric disability. Further, in September 2020, the RO requested that the Veteran complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, pursuant to Board remand directives. As stated above, the Veteran did not complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, as requested by the RO, however. The evidence of record does not support a finding that the Veteran's service-connected PTSD disability supports a TDIU rating independently. See DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU rating independent of the other 100 percent disability rating). Thus, as the RO indicated in the April 2021 rating decision, the issue of entitlement to a TDIU is essentially moot because no additional benefit would flow to the Veteran. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.