Citation Nr: 21067759 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 06-35 258 DATE: November 5, 2021 ORDER Entitlement to an initial 100 rating for posttraumatic stress disorder (PTSD) is granted from September 19, 2003. Entitlement to a total disability rating due to individual unemployability (TDIU) is dismissed as moot. FINDINGS OF FACT 1. The Veteran's PTSD has more closely approximated total occupational and social impairment over the entire appeal period. 2. Given the Veteran's 100 percent award for PTSD, there remains no case or controversy with respect to the issue of entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for an initial 100 percent rating are met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The appeal for entitlement to a TDIU is dismissed as moot. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1966 to April 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a June 2004 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In October 2012, the Board took jurisdiction over the issue of entitlement to a TDIU and remanded it for further development. In February 2016, the Board remanded the issues of entitlement to an increased initial evaluation for PTSD and a TDIU. In June 2017, the Board confirmed the staged ratings assigned to the Veteran's PTSD and denied entitlement to a TDIU. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2018 Order, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA (Parties), vacated the parts of the Board's June 2017 decision that denied increased ratings for PTSD and entitlement to a TDIU, and remanded the matter for compliance with the JMPR instructions. JMPR at 2-3. Specifically, the Parties agreed that the Board failed to provide adequate statements of reasons or bases regarding use of Global Assessment of Functioning (GAF) scores and its finding that the Veteran could perform a sedentary occupation. Id. After issuance of the JMPR, the case returned to the Board and in May 2019 the Board denied increased ratings for PTSD and entitlement to a TDIU. The Veteran appealed this decision to the Court. In a June 2020 Order, the Court granted a Joint Motion for Remand (JMR) submitted by the Parties, vacated the Board's May 2019 decision, and remanded the matter for compliance with the JMR instructions. Specifically, the Parties agreed that the Board erred by failing to discuss relevant favorable evidence of record that supported a finding of unemployability and that demonstrated the Veteran experienced suicidal and homicidal ideations and hallucinations. JMR at 2-3. The Parties additionally agreed that the Board failed to provide an adequate statement of reasons or bases for its finding that the case had been certified to the Board after August 2014, and therefore found that GAF scores could not be considered. Id. at 3-4. Lastly, the Parties agreed that the Board erred by failing to consider whether the Veteran "was entitled to [a] TDIU based on the effects of all of his service-connected disabilities." Id. at 5-6. After issuance of the JMR, the Veteran died in December 2020. In February 2021, the case returned to the Board and the Board dismissed the matter due to the Veteran's death. In March 2021, the Veteran's spouse requested that she be substituted for the Veteran as the claimant in the appeal, and this request was granted in September 2021. See March 2021 VA Form 21P-0847; September 2021 Notification Letter. Thereafter, in September 2021 this case was returned to the Board's docket. 1. Entitlement to an initial 100 percent rating for PTSD is granted from September 19, 2003. The Veteran's PTSD has been rated at 50 percent disabling from September 19, 2003; 70 percent disabling from January 10, 2008; and 50 percent disabling from October 1, 2010. As this appeal concerns an initial rating, the period on appeal is from the date of the effective date of service connection, or September 19, 2003. The criteria for rating the Veteran's PTSD are found in the General Rating Formula for Mental Disorders, DC 9411. See 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 50 percent rating is warranted where PTSD is manifested by occupational and social impairment with reduced reliability and productivity, due to symptoms such as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned where PTSD produces 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); and inability to establish and maintain effective relationships. A 100 percent rating is warranted if 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that "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." The Board finds that throughout the entire appeal period the Veteran's PTSD has more closely approximated total occupational and social impairment, which warrants a 100 percent rating. Regarding total social impairment, over the appeal period the Veteran has evidenced peristent visual hallucinations. See May 2004, September 2005 and January 2013 VA psychiatric examination reports. There are also a number of instances of grossly inappropriate behavior of record. Specifically, in February 2008 the Veteran was charged with aggravated assault. Additionally, an August 2011 VA treatment record notes the Veteran's report that he drove off "bridges and into a house in the past because he was angry." A June 2013 VA Psychiatry Note also indicates the Veteran almost shot at his son, and that he exhibited impulsive actions when angry. The Veteran also evidenced a persistent danger of hurting himself or others. The May 2005 VA examiner observed that the Veteran could be irritable, short tempered, and angry, and that the Veteran tried to suppress these feelings because "he is afraid he might get violent." The Veteran reported to the September 2005 VA examiner that "it is easier to hate people than to love them" and he "gets irritable and feels like hurting others but holds back." Moreover, there are notations of suicidal and homicidal ideation throughout the record, including a November 2004 VA treatment record noting that the Veteran was specifically thinking about "what it would be like to die and not have to deal with things," at which time it was also indicated that he uses isolation and avoidance "to keep himself and others safe." See also May 2004 VA treatment record (Veteran suppressing feelings of irritability, short temper and anger for fear of becoming violent); August 2004 Veteran Center Mental Status Evaluation (Veteran endorsed anxiety and worrying about his own death); September 2005 VA treatment record (Veteran reported he was feeling like hurting others); March 2006 VA treatment record (Veteran "wonders why he is going on"); May 2006 VA treatment record (Veteran carries a gun, isolates "to avoid acting out aggressively when he is annoyed by others," experiences passive suicidal and homicidal ideation and "shows a propensity to act out aggressively under stressful conditions."); April 2012 and August 2019 VA treatment record (homicidal thoughts); April 2014 VA treatment record (noting the Veteran's fear of not being "able to control his anger if he gets into arguments); January 2019 VA treatment record (Veteran had ongoing concerns with impulsivity); February 2020 VA psychology note (Veteran continued to struggle with socialization, impulsivity, arguing, fighting, irritability, and feeling that he is incapable of love); and December 2020 VA treatment record (Veteran preferred to isolate at home for fear of becoming "irritable and angry and possibly hurt others"). The Board finds that the above-referenced symptoms, along with the Veteran's extreme isolation from others, noted throughout the medical records and as confirmed by his spouse and daughter, are collectively reflective of total social impairment. See, e.g., May 2004 VA examination (Veteran preferred to stay home, kept the blinds closed, and did not answer the phone); November 2014 VA treatment record (social isolation); lay statements from the Veteran's spouse and daughter (confirming avoidance of others and isolation); May 2006 VA treatment record (noting the Veteran's social isolation, feelings of paranoia and lack of feelings of safety); March 2007 VA treatment record (noting the Veteran spends much of his time alone, because of his irritability and lack of trust); December 2019 VA treatment record (social isolation); February 2020 VA treatment record (continued struggle with socialization); December 2020 VA treatment record (Veteran preferred to isolate at home). Moreover, total occupational impairment is established. The Veteran retired from working in June 2006, which is a few years after the commencement of the appeal period. See VA Forms 21-8940; VA Form 21-4192. However, the last 16-20 years of his employment history consisted of part-time work for a construction company. See id; see also May 2006 VA treatment record (noting that more recently, the Veteran has not been able to work collectively for more than 8 to 10 weeks out of the year). Moreover, and critically, before he retired, the Veteran's employment for the construction company constituted marginal employment and a protected work environment, as it was contract-based, intermittent, allowed for a flexible schedule, and his employer accommodated his anxiety, irritability, and difficulty being around other people by providing flexible assignments. See 38 C.F.R. § 4.16(a); March 2010 VA treatment record; May 2006 VA psychology PTSD assessment; March 2005 employer letter; November 2004 VA treatment record. Moreover, the record supports the Veteran was unemployable due to PTSD. See March 2007 VA treatment record (Veteran "is not able to be gainfully employed due to his PTSD and diabetes"); September 2014 VA treatment record (Veteran is unemployable due to multiple disabilities, to include PTSD); June 2007 VA examination report (Veteran stopped working, in part, because he was "easily startled during dangerous working conditions, irritability" and that the Veteran "is unemployable due to PTSD). Affording the Veteran the benefit of the doubt, the Board finds that his PTSD symptoms, alone, resulted in total occupational impairment. Finally, with regard to the applicability of GAF scores, the parties' concerns are now moot, given the 100 percent schedular rating awarded herein. However, in this regard, the Board notes that the issue of entitlement to an increased rating for PTSD was never certified to the Board, but was instead inexplicably noted as on appeal in a February 2016 decision. See February 2016 Board decision at 19-21; December 2008 VA Form 8. Accordingly, the Board will consider this issue as having been certified to the Board in December 2008 along with his TDIU appeal. Although that means the consideration of GAF scores in rating the Veteran's PTSD is not precluded, see Golden v. Shulkin, 29 Vet. App. 221 (2018), the Board declines to consider them, as they have varied widely over the appeal period, from 50, which is reflective of serious impairment and consistent with the award of a 100 percent rating, to 70, which is reflective of only mild impairment and is completely unsupported. 2. Entitlement to a TDIU is dismissed as moot. A grant of a 100 percent disability rating does not always render the issue of a TDIU moot, as 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 (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. Here, the Veteran is in receipt of a 100 percent rating for his PTSD. His only other service-connected disabilities are diabetes an associated neuropathy and hypertension, which combine to a 40 percent rating. The record does not establish, and the Veteran did not previously assert, that these disabilities, alone, supported a TDIU. Instead he has always reported PTSD as part of his total disability picture. See July 2006, September 2008 and January 2013 VA Forms 21-8940; September 2005, June 2007, and January 2013 VA examinations. As a result, the issue of entitlement to TDIU is moot and must be dismissed. 38 U.S.C. § 7105. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.