Citation Nr: 21070773 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 15-19 979A DATE: November 26, 2021 ORDER For the entire period on appeal, beginning February 25, 2011, an initial rating of 100 percent for posttraumatic stress disorder with chronic alcoholism and cocaine abuse (PTSD) is granted. The appeal seeking entitlement to a total disability rating based on individual unemployability (TDIU), having been rendered moot, is dismissed. FINDINGS OF FACT 1. For the entire period on appeal, beginning February 25, 2011, the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment consistent with his educational and occupational background. 2. The Veteran does not have a service-connected disability other than PTSD that is separately rated at least 60 percent disabling. 3. As a 100 percent ("total") schedular rating for PTSD will be awarded for the entire rating period on appeal based on a finding of total occupational impairment, leaving no rating period where the schedular rating is "less than total," the issue of entitlement to a TDIU is rendered moot. CONCLUSIONS OF LAW 1. For the entire period on appeal, beginning February 25, 2011, the criteria for a rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2020). 2. The matter of the Veteran's entitlement to a TDIU has been rendered moot by the award of a total (100 percent) schedular rating for PTSD for the entire appeal period, leaving no question of law or fact to decide regarding that issue. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.14, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from June 1964 to September 1968, and in the Coast Guard from March 1975 to March 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Appeals (VA) Regional Office (RO). In January 2019, the Board remanded the appeal for further development. There has been substantial compliance with the Board's January 2019 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). By way of background, service connection for PTSD was granted in a May 2013 rating decision, and an effective date of February 25, 2011 was assigned. In September 2013, the Veteran filed a claim for an increased rating, which was denied in the April 2014 rating decision that gave rise to the present appeal. As the increased rating claim was filed within one year of the May 2013 rating decision, the May 2013 rating decision did not become final. In light of this procedural history, the issue on appeal has been recharacterized as entitlement to an increased initial rating for PTSD. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to an initial rating in excess of 70 percent for PTSD. The Veteran is in receipt of a 70 percent initial disability rating for TPSD under 38 C.F.R. § 4.130, DC 9411. He seeks a higher rating. The Veteran's PTSD is rated under the general rating formula for rating mental disorders pursuant to 38 C.F.R. § 4.130, DC 9432. Under such formula, a 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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 total schedular rating of 100 percent is warranted when the disorder results in 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 (ADLs) (including maintenance of mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Effective August 4, 2014, VA amended the portion of the Rating Schedule 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 updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the 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 as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Here, the RO certified the Veteran's appeal to the Board after August 4, 2014; therefore, the PTSD claim is governed by DSM 5 and the GAF scores are not relevant for consideration. See Golden v. Shulkin, 29 Vet. App. 221, 225-26 (2018) (holding that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where DSM-5 applies). When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. Turning to the evidence, an August 1999 VA social work progress note indicated that the Veteran was not working due to a non-service connected back problem. An August 1999 VA psychology note indicated that the Veteran reported that he had reinjured his back on the job and had not worked since 1995. In a February 2011 Case Report, a private psychiatrist, Dr. C.A.L.V., indicated that the Veteran described himself as a very reactive and violent person. He seemed to have a serious insomnia problem, as he told the psychiatrist that he spends the night awake waiting for someone to come harm him. The Veteran reported often staying up all night, watching the front door of his house for anything suspicious. The Veteran also reported not relating well to others, except for his wife and two daughters. The psychiatrist stated that the Veteran worked as a Merchant Mariner for several years and later as a heavy equipment (large trucks in convoys) driver in Iraq during the last years. The psychiatrist opined that the Veteran's PTSD was severe and disabling. In a February 2014 Re-Evaluation Report, Dr. C.A.L.V. noted that the Veteran was hypervigilant and had tried to commit suicide by stabbing himself in the stomach. He assaulted the man who stopped him from committing suicide. He was married and related in an acceptable way with his children and wife, but otherwise avoided social relationships. He was described as withdrawn, with minimal personal hygiene and poor interpersonal relationships. The production of thoughts was damaged and rolled into delusions at certain movements of the interview. He had increasing memory loss, such that he gets disoriented even while at home. He had frequent panic attacks, which were severe and of varying, but mostly long, duration. He was depressed and his anxiety was prevalent. He had decompensations almost every three months, one requiring admission to inpatient treatment. The psychiatrist opined that the Veteran's PTSD seems to be worsening with age, as he is isolating more and more, is more withdrawn, gets disoriented more easily every day, and his symptoms continue to increase in spite of medication. The psychiatrist concluded that the Veteran is totally occupationally and socially impaired and cannot hold employment. In a May 2015 PTSD evaluation report, the Veteran's treating psychiatrist, Dr. E.M.S., stated that the Veteran had escalating symptoms of depression, total isolation, poor self-care, and "fear that something terrible was going to happen" to a delusional level. The Veteran voiced serious suicide ideation and attempted to harm himself, by overdosing with alcohol while he was in the bathtub. His ADLs, such as procurement of food and proper fluids intake were significantly restricted, and his hygiene and self-care were poor. He reported severe insomnia and despair. In order to alleviate his symptoms, the Veteran had been abusing alcohol and cocaine daily, jeopardizing his safety in his dangerous neighborhood. He had two psychiatric hospitalizations in the first half of 2015. The Veteran was in poor general condition, with constant cough, and appeared very depressed after weeks of lack of self-care, drinking, and cocaine binges, as well as constant suicidal ideation with plan to overdose on alcohol and cocaine. In an August 2019 letter, Dr. E.M.S. stated that, during the past several years, the Veteran's relapses have been more frequent and intense, with clear compromise in thought processes and communication, persistent ideas of reference, social isolation, intermittent inability to perform ADLs, inability to care for physical needs, memory loss, including familiar names or essential contacts, or priorities to keep up with appointments, contact with health providers and maintain control of usual domestic financial accounts. In October 2020, the Veteran was afforded a VA examination. He was diagnosed with PTSD, as well as alcohol use disorder, in partial remission, and cocaine use disorder, in remission. The VA examiner noted that the Veteran is married, but lives alone. He remained in contact with his daughter. He reported being capable of ADLs. He had not worked in years, and did not trust people. He went to the store and returned home. He reported hypervigilance. He stated that his doctors thought he was depressed, but he did not agree. He was essentially sober from substance use. The examiner reported that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, circumstantial, circumlocutory or stereotyped speech, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. During the examination, the Veteran had to be interrupted and redirected several times, though the VA examiner noted some of that may be due to the Veteran's reported hearing impairment. His memory, concentration, judgement and insight were all adequate. The VA examiner opined that the Veteran would less likely than not be capable of sustaining gainful employment. Although his physical issues contribute heavily to his being unable to work, it was difficult for the examiner to keep him on task during the interview. He rambled, but was capable of providing information, was aware of what the interview was for, and took the examiner on a virtual "tour" of his small apartment. The Veteran reported that he does not trust people and stays home by himself "almost all the time." Thus, the VA examiner opined that the Veteran would likely be unreliable for maintaining gainful employment and would be unable to work with others. He would have difficulty staying on task. The VA examiner noted that the Veteran appears to be improved over previous descriptions of his presentations, most likely due to decreased substance use and compliance with psychiatric treatment. After a review of the evidence, the Board resolves any reasonable doubt in the Veteran's favor and finds that his PTSD symptoms have most nearly approximated total occupational and social impairment for the entire period on appeal. Throughout the initial rating period on appeal, beginning February 25, 2011, the evidence has consistently reflected that the Veteran has experienced total occupational impairment due, at least in part, to his PTSD symptoms. See August 1999 VA psychology note; February 2014 opinion from DR. C.A.L.V.; and October 2020 VA examination report. The Veteran has also had intermittent inability to perform ADLs, including maintenance of minimal personal hygiene. See February 2014 report from Dr. C.A.L.V.; May 2015 VA PTSD evaluation report; and August 2019 letter from Dr. E.M.S. He has had repeated suicidal ideations, including attempts to hurt himself. See February 2014 report from Dr. C.A.L.V.; and May 2015 PTSD evaluation report. While the Veteran has maintained contact with his daughter throughout the period on appeal, his relationship with his wife has deteriorated to the point that they no longer live together. See October 2020 VA examination report. Other than these immediate familial relationships, the Veteran is totally socially isolated. See February 2011 report from Dr. C.A.L.V.; February 2014 report from Dr. C.A.L.V.; August 2019 letter from Dr. E.M.S.; and October 2020 VA examination report. The Veteran has significant memory impairment and difficulty concentrating and staying on-topic. See February 2014 report from Dr. C.A.L.V.; August 2019 letter from Dr. E.M.S.; and October 2020 VA examination report. Finally, the Board finds the 2014 opinion from Dr. C.A.L.V. and the October 2020 VA examiner's opinion that the Veteran is totally occupationally and socially impaired due to his PTSD to be highly probative, as they are based on examination of the Veteran and include detailed rationales. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PTSD symptoms more nearly approximate in total occupational and social impairment for the entire period on appeal, beginning February 25, 2011, and as such, a 100 percent rating is warranted. 2. Entitlement to a TDIU. As to the claim for a TDIU, this benefit contemplates a schedular rating less than total for the disability or disabilities on which the TDIU would be based. See 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than a 100 percent schedular rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is that a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). As decided herein, the Veteran has now been awarded a 100-percent rating for PTSD on a schedular basis for the entire initial rating period under review. He is also in receipt of service connection for a left inguinal area hernia scar (rated 0 percent disabling from August 25, 1981) and eczematoid rash of the genitalia and nailbed, asymptomatic (rated 0 percent disabling from August 25, 1981). Thus, there is no disability separate from the PTSD that is rated at 60 percent or more. As such, entitlement to a TDIU is rendered moot for the entire period on appeal, and the issue of entitlement to SMC is not raised by the record. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.