Citation Nr: 21070837 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 19-16 272 DATE: November 26, 2021 ORDER Entitlement to a disability rating of 100 percent for service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms more closely approximate total occupational and social impairment. 2. Entitlement to a TDIU is moot by virtue of the 100 percent schedular rating now assigned for PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 100 percent for service-connected posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.126, 4.130 Diagnostic Code (DC) 9411. 2. The criteria to render the issue of TDIU moot have all been met. 38 U.S.C. §§ 501, 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from December 1976 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) from a July 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's TDIU claim arose as a result of his increased rating claim for his PTSD. Additionally, in the June 2019 VA Form 9 he asserted that his service-connected PTSD keeps him from obtaining or maintaining substantially gainful employment. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim which such claim is reasonably raised by the record. On the July 2018 VA examination, the Veteran asserted that he has not worked for at least the last five years and noted he has had trouble maintaining employment since he left service. In this case, the Veteran is herein granted a 100 percent rating for his service-connected PTSD. Although a 100 percent rating does not necessarily render a claim of entitlement to TDIU moot, TDIU can only be awarded if it is supported by a separate disability independent of the 100 percent disability rating. See Bradley v. Peake, 22 Vet. App. 280 (2008). Here, there is no separate disability independent of the 100 percent PTSD rating to support TDIU. Therefore, the Board finds the issue of TDIU raised by Rice v. Shinseki to be moot. In April 2021, the Veteran had a hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the file. 1. Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). The rating criteria for rating mental disorders reads as follows: A 100 percent rating requires 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. 38 C.F.R. § 4.130. A 70 percent rating requires 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); inability to establish and maintain effective relationships. Id. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove references to the DSM-IV and replace them with references to the updated DSM, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094; 38 C.F.R. § 4.125. The provisions of the final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. VA has clarified that the provisions of the 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, even if such claims are subsequently remanded to the AOJ. The instant appeal was originally certified to the Board in June 2018. Therefore, the new version of the Schedule for Rating Disabilities is applicable. In the July 2018 VA examination and July 2019 private examination, the examiners specifically reference the diagnostic criteria from the DSM-5. Therefore, the VA is in full compliance. Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). The Board shall consider all information and lay and medical evidence of record in a case before it, with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465 (1994). In determining whether an increased disability rating is warranted, 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 of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In March 2018, the Veteran filed an initial claim for service connection due to his PTSD. The Veteran presented to the Maui VA Clinic, and in May 2018 he underwent a PTSD screen which came back as positive. In June 2018, the Veteran was diagnosed with an unspecified mood disorder. He was noted to have an intense anger, poorly developed coping skills, and poor sleep. The Veteran was afforded a VA examination in July 2018. The examiner found that the Veteran had PTSD that conformed to the DSM-5 criteria. The examiner also noted that the Veteran had an occupational and social impairment with reduced reliability and productivity. On the examination, the Veteran reported difficulty maintaining employment after service. He stated his longest employment was for two years as a carpet cleaner. He also reported that all other jobs he had after service did not last more than eight or nine months before he would quit, due to being irritated or frustrated. The Veteran specifically stated that he disliked being told what to do. At the time of the examination, he reported that he had been unemployed for the last five years. The examiner found that the Veteran's two reported in-service stressors met Criterion A of the DSM-5 diagnosis for PTSD. Additionally, the examiner found the Veteran to exhibit the following symptoms: depressed mood; anxiety; chronic sleep impairment; impaired judgement; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting; and impaired impulse control such as unprovoked irritability with periods of violence. The Veteran was also found to be a fair historian, despite short and fragmented answers with some difficulty recalling dates of events. His affect was irritable with restricted range. Some tearfulness was noted during the examination and his tone was abrasive. Subsequently, the Veteran was granted service connection for PTSD with a 50 percent disability rating. In November 2018 the Veteran began to see a private psychiatrist, Dr. J.W.L. The private provider noted that the Veteran had clear signs of high distress whenever he talked about the stressor. The Veteran was noted to speak in a "highly energized way" and shifted topics without transition. Dr. J.W.L. reported that the Veteran's recounting of history was also difficult to follow because of topic changes and the omission of orienting information such as time, place, or fine details that failed to form the larger picture. The private psychiatrist also commented on the Veteran's extreme anger, noting that he had no self-calming skills and may be potentially dangerous. The Veteran returned to Dr. J.W.L. for another evaluation in November 2018. The private provider stated that the Veteran's sleep was extremely disturbed, that he is highly distressed, and has severe hypervigilance. The Veteran was seen again by Dr. J.W.L. in December 2018. The Veteran described an event where he saw F18s and F22 at the airport that sent him into a mental fugue or dissociative state where he lost track of time for more than a day. He also described an aggressive altercation in which he threatened several people and was ready to fight. The Veteran stated he is terrified of his own rage and that shortly after leaving the Navy he did not care if he lived or died because he felt that he did not matter. The Veteran stated that his fear of rage controls his life and causes him to avoid places, situations, and people. In January 2019 the Veteran again was seen by his private psychiatrist. He reported making progress in reducing his rage but reported that he ruminates about wrongs that he believes were done to him and he often wakes in the middle of the night thinking about what he should have done in certain situations rather than walk away. He reported that he may separate from his girlfriend because of how hard he is to be around. He also claimed that his mind never rests, and he thinks at high speed all the time. Dr. J.W.L. stated that the Veteran cannot be reasonably expected to work as he cannot be trusted to maintain civility and safety in situations. The Veteran submitted more private treatment records from Dr. J.W.L. from appointments that he attended monthly between January 2019 to July 2019. Throughout the record, the Veteran is found to struggle with chronic anger, ranting language habits, extreme hypervigilance, defensiveness, and agitation. The Veteran also reported that he lost his temper badly in several instances and got into a fight around May 2019. In June 2019, the private provider noted that he voiced intense anger and was unable to speak or converse without pacing and gesticulating broadly. The Veteran expressed of fear of losing control of his anger and the psychiatrist noted that a loss of control was a very real danger. Dr. J.W.L. suggested that he should go to the emergency room to be admitted but he refused. In July 2019, the Veteran's private psychiatrist performed a disability benefits questionnaire (DBQ) to be submitted into the record. Dr. J.W.L. initially noted the Veteran's DSM-5 diagnosis of PTSD with dissociative symptoms. Additionally, the examiner rated the Veteran as having a total occupational and social impairment. The DBQ reports that the Veteran is totally estranged from his family and just recently moved into rent-supported housing with his partner. The relationship is noted to be highly volatile with arguing and frequent separation. The Veteran alluded to being convicted of assault and battery earlier. Talking about the incident upsets the Veteran so much that his report becomes fragmented and disoriented. It is also reported that the Veteran has been involved in several high conflict altercations during the past few years and some of them have become physical. Dr. J.W.L. noted the Veteran's symptoms to include depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near continuous panic or depression affecting his ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, and recent events; impairment of short and long term memory; forgetting to complete tasks; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty understanding complex commands; impaired judgement; impaired abstract thinking; gross impairment in thought processes or communication; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances including work or a worklike setting; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activity; impaired impulse control such as unprovoked irritability with periods of violence; persistent delusions or hallucination; grossly inappropriate behavior; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; and disorientation to time and place. The private psychiatrist also noted the Veteran's frequent episodes of rage that sometimes lasted up to 10 days during which time he perseverates on perceived wrongs and slights. During these periods he becomes terrified he will injure or kill someone and end up in jail or a mental hospital. The Veteran also shows signs of paranoia and is highly intolerant to change, error, or perceived dishonesty. Finally, Dr. J.W.L. stated that places of employment, schedules, and fixed expectations are all seen as forms of restraint to the Veteran and as such are intolerable to him and can lead him into anger and rage. The Veteran is found to be unable to maintain substantially gainful employment. The Veteran also submitted a buddy statement into evidence. Mr. R.A. is a retired Navy Veteran who spent more than 21 years in the service and has been diagnosed with PTSD. R.A. stated that he has known the Veteran for about two years and his anger outbursts scare Mr. R.A. He further reported that the Veteran is always anxious and angry, is only getting one to two hours of sleep per night, does not trust anyone, exhibits erratic behavior, and reports recurring nightmares of his in-service stressor. Mr. R.A. also claims that the claimant has reported suicidal ideation more than once. In April 2021, the Veteran was afforded a Board hearing before the undersigned VLJ. The Veteran's representative pointed to the DBQ performed by Dr. J.W.L., indicating that all six requirements listed under a 100 percent disability rating for a psychiatric disability were satisfied by the Veteran. The Veteran reported symptoms documented throughout the record, expressing paranoia about the use of electronics, becoming agitated and angry, and noting his fear of hurting someone when he is enraged. After a full review of the Veteran's VA medical records, private medical records, and lay testimony of the record, the Board determines that the Veteran is entitled to a rating of 100 percent for his PTSD. The evidence establishes that the Veteran's PTSD more nearly approximates total occupational and social impairment, which warrants a 100 percent rating under Diagnostic Code 9411. The Veteran is specifically reported as having all the symptoms required to meet a 100 percent rating throughout the period on appeal. Thus, based on the totality of the evidence of record, entitlement to a 100 percent rating for the Veteran's PTSD is granted. The Board finds that the Veteran does demonstrate symptoms sufficient to receive a 100 percent rating for the disability. See Mauherhan v. Principi, 16 Vet. App. 436 (2002) (stating that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating). Through the private treatment records, as well as the DBQ performed by Dr. J.W.L., the Veteran does show a serious, persistent, and actual danger of hurting himself or others. In Bankhead, the Court held that there is a differentiation between thoughts of suicidal ideation and actual risk of self-harm or harm to others, which is referenced in the 100 percent rating criteria. Bankhead, supra at 11. The Veteran was also noted by his private provider to be incapable of some daily activities, including personal hygiene, and exhibiting gross impairment in thought and grossly inappropriate behavior. The Veteran also maintained no relationships with his family and had a highly volatile relationship with his female partner. Accordingly, the Board does find that the Veteran's symptoms are of such frequency, severity, and duration that they resulted in total occupational and social impairment to warrant a 100 percent evaluation. The evidence leads to one conclusion: the Veteran has such significant, serious, and pervasive symptoms, he warrants a 100 percent rating for his service-connected PTSD. 2. Entitlement to a total disability rating based on individual employability (TDIU) The Board notes that the Veteran is granted a schedular 100 percent rating for PTSD due to the ruling set out above. VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board notes that a grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation (SMC). SMC may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that TDIU is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, TDIU is not warranted solely on the Veteran's disabilities other than PTSD. The Veteran's VA Form 9 stated he had not worked in the last 10 years and the Veteran testified at his hearing that he had not consistently held a job in 35 years. Considering the Veteran's symptoms of PTSD, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation due entirely to his PTSD symptoms. The Veteran experiences severe symptoms due to his PTSD, including severe bouts of anger, as well as issues listening to authority figures, keeping a schedule, or performing some daily activities. The private opinion from Dr. J.W.L. and the buddy statement from R.A. state that the Veteran ia unable to obtain or maintain any substantially gainful employment. In order for TDIU to not be moot, TDIU must be warranted based solely on disabilities other than the disability that is rated at 100 percent, which in this case is PTSD. The Veteran's tinnitus and right ear hearing loss do not prevent him from obtaining and maintaining substantial gainful employment. Based on impairments from these disabilities alone, the Veteran would be able to work. The Board finds that the Veteran is not so limited as to be precluded from employment due to his tinnitus and hearing loss. As such, the issue of entitlement to TDIU is moot. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.