Citation Nr: 21067993 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-50 924 DATE: November 8, 2021 ORDER Entitlement to an initial rating of 100 percent for service-connected posttraumatic stress disorder (PTSD) from July 24, 2013, is granted. 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 throughout the 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 rating of 100 percent for PTSD 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 Army from November 2005 to April 2006; October 2006 to February 2008; and July 2012 to July 2013. This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) awarding service connection for PTSD effective July 24, 2013. In this regard, new and material evidence was received within the one year appeal period awarding service connection for PTSD, and the Veteran appealed the rating decision addressing this new and material evidence. In July 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. 1. Entitlement to an initial rating of 100 percent for PTSD is granted from July 24, 2013. The Veteran asserts that her PTSD warrants an increased evaluation. See July 2021 Board hearing transcript (Tr.) at 2, 10; November 2018 and October 2017 VA Forms 9; July 2016 and February 2016 Statements in Support of Claim; July 2016 Notice of Disagreement (NOD). The Board agrees. This appeal concerns an initial rating and the period on appeal is from July 24, 2013. The Veteran's PTSD is currently rated at 30 percent from July 24, 2013; 50 percent from July 10, 2017; and 100 percent from December 23, 2020. 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 30 percent rating is warranted where PTSD is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 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 warranted 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 where PTSD produces 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; and 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 Federal Circuit further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted. While the diagnostic criteria set forth multiple symptoms indicative of the 70 percent level, the Court held in Bankhead v. Shulkin that "the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." See 29 Vet. App. 10, 20 (2017). The Board finds that the evidence of record supports a 100 percent initial rating for PTSD from July 2013. In this regard, the Board wishes to highlight that the December 2020 rating decision granted a 100 percent rating for PTSD from December 23, 2020, based, in part, on the following symptoms: gross impairment in thought processes and communication; suspiciousness; depressed mood; disturbances of motivation and mood; mild memory loss, but also noting forgetting names, directions and recent events; chronic sleep impairment; difficulty in understanding complex commands; panic attacks more than once a week; persistent hallucinations; difficulty in adapting to stressful circumstances, including work; anxiety; and difficulty in establishing and maintaining effective work and social relationships. The Board observes that the Veteran's PTSD has produced these same symptoms demonstrate of total occupational and social impairment throughout the entire appeal period. Specifically, examples of gross impairment in thought processes and communication are noted throughout the appeal period. The Veteran's mother wrote in January 2015 that the Veteran had become less communicative. In a February 2015 Statement in Support of Claim, the Veteran reported that she has "difficulty in remembering what we are talking about in a conversation." The May 2015 C&P examiner observed that the Veteran "jumped around from topic to topic, started and stopped sentences." The July 2016 C&P examiner observed that during the interview the Veteran "had some difficulty staying focused on task, as she tended to move from one topic to another. Some of her responses were vague, making it difficult to get a clear idea of some of her issues." In her October 2017 VA Form 9, the Veteran reported that due to her PTSD she forgets what was being discussed in a conversation. The November 2017 C&P examiner noted that the Veteran reported that she frequently forgets what she is talking about in a conversation. Suspiciousness was noted in the May 2015, January 2016, July 2016, July 2017, and November 2017 C&P examinations. Depressed mood was noted in the January 2016, July 2016, July 2017, and November 2017 C&P examinations. Depression, sadness, or crying were also noted in the January 2015 Veteran's mother's statement, February 2015 buddy statement, and the Veteran's husband's November 2018 statement. Disturbances of motivation and mood and mood swings were noted in the Veteran's mother's January 2015 statement, the husband's November 2018 statement, and in the May 2015, July 2016, July 2017, and November 2017 C&P examinations. Mild memory loss was endorsed in the July 2016 NOD/Statement in Support of Claim, October 2017 VA Form 9, July 2021 Board hearing, and in the July 2016, July 2017, and November 2017 C&P examinations. The Veteran indicated that she "forgets what she's talking about" in the November 2017 C&P examination, and she reported to the Social Security Administration in 2017 that she had "trouble remembering things," and in her hearing before the undersigned she reported difficulty remember things, included what she should do in a job setting. Notably, the 2020 VA examiner noted the Veteran's memory loss was "mild," but that she forgot names, directions, and recent events, which was supportive of a 100 percent rating in the 2020 rating decision. As this level of memory impairment has been consistent throughout the appeal period, it is supportive of a total rating. Chronic sleep impairment was noted by the Veteran's mother in a January 2015 statement; in the May 2015, July 2016, July 2017, and November 2017 C&P examinations; the Veteran's July 2016 NOD/Statement in Support of Claim; and by the Veteran's husband in a November 2018 statement. The Veteran endorsed difficulty in understanding complex commands in her July 2016 NOD/Statement in Support of Claim. Panic attacks were endorsed in the February 2015 buddy statement, July 2016 NOD/Statement in Support of Claim, and October 2017 VA Form 9. Peristent hallucinations are established throughout the appeal period. Specifically, hallucinations were noted in the July 2017 C&P examination and persistent delusions or hallucinations were specifically noted in the November 2017 C&P examination. At the July 2021 Board hearing, the Veteran credibly testified that she has experienced auditory hallucinations since 2013. Tr. 10-12. Auditory hallucinations were also noted in June 2016 and August 2016 private treatment records. Visual hallucinations were documented in an August 2016 private treatment record. Difficulty in adapting to stressful circumstances, including work, has also been present since 2013, as noted in the May 2015, January 2016, July 2016, and July 2017 C&P examinations. Anxiety was noted in the May 2015, January 2016, July 2016, July 2017, and November 2017 C&P examinations. The Board also notes that VA treatment records show that the Veteran was hospitalized in 2016 due to anxiety associated with her PTSD, and the anxiety was so severe it caused seizures. Difficulty in establishing and maintaining effective work and social relationships were endorsed in the July 2016 NOD/Statement in Support of Claim and July 2017 C&P examination. Social withdrawal and isolation were also noted in the Veteran's mother's January 2015 statement, February 2015 buddy statement, her husband's November 2018 statement, and at the July 2021 Board hearing. The Board also adds to this list of symptoms suicidal ideationwhich alone supports at least a 70 percent ratingand persistent danger of hurting self, which meets the criteria for a 100 percent rating. The January 2016 and July 2017 C&P examiners considered the Veteran to be at an increased risk of suicide. The Veteran endorsed thoughts about death in February 2015, January 2016, July 2016, and November 2017. At the July 2021 Board hearing, the Veteran credibly testified that her PTSD has produced suicidal ideation throughout the appeal period. Tr. 10-12. Although numerous C&P examinations and treatment records throughout the appeal period indicate the Veteran denied suicidal ideation, as well as some other symptoms, the Board finds that those denials of symptoms do not outweigh the preponderance of probative evidence in favor of granting the increased rating. In this regard, treatment records note that the Veteran has difficulty talking about these issues and discussing her psychological symptoms and feelings. See September 2016 and August 2016 private therapy sessions; July 2016 C&P examination; June 2016 private psychological evaluation. The Veteran's difficulty in discussing her PTSD symptoms does not diminish her credibility. Furthermore, the medical records support the presence of PTSD symptoms and these records, completed by clinicians trained in diagnosing and treating psychiatric disorders, carry probative weight in favor of a 100 percent rating. Accordingly, throughout the appeal period the Veteran's PTSD has been productive of symptoms that more closely approximate total occupational and social impairment. Thus, entitlement to an initial rating of 100 percent for service-connected PTSD from July 24, 2013, is granted. 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 her 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 her PTSD. Her only other service-connected disability is pes planus, which is staged at 10 and 50 percent disabling over the appeal period. The record does not establish, and the Veteran does not assert, that her pes planus warrants a TDIU. Instead she has always reported that her PTSD renders her unemployable. See May 2016 and February 2021 VA Forms 21-8940. 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.