Citation Nr: 21072017 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 13-28 549 DATE: December 2, 2021 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD), from November 1, 2010, to September 10, 2014, and from November 1, 2014, to February 4, 2021, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDING OF FACT From November 1, 2010, to September 10, 2014, and from November 1, 2014, to February 4, 2021, the Veteran's PTSD manifested in total occupational and social impairment. CONCLUSIONS OF LAW 1. From November 1, 2010, to September 10, 2014, and from November 1, 2014, to February 4, 2021, the criteria for an evaluation of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The issue of entitlement to TDIU has been rendered moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to May 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in September 2017, June 2020, November 2020, and April and August 2021. The case has been returned to the Board at this time for further appellate review. The Board notes that this matter was remanded in August 2021 to obtain a retrospective opinion. Such opinion was obtained in October 2021. Thus, the Board finds that there has been substantial compliance with the August 2021 remand directives. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 1. Entitlement to a rating in excess of 50 percent for PTSD, from November 1, 2010, to September 10, 2014, and from November 1, 2014, to February 4, 2021, is granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran's PTSD was initially rated as 50 percent disabling effective June 30, 2006. The Veteran was granted a temporary 100 percent rating for his PTSD effective September 11, 2014, a 50 percent rating effective November 1, 2014, and then a 100 percent rating effective February 5, 2021. Under the General Rating Formula for Mental Disorders, a rating of 100 percent is reserved for 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. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the claimant's symptoms, but it must also make findings as to how those symptoms impact the claimant's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Since the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). The Board must also "assign an evaluation 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 examination." Id. Accordingly, an examiner's classification of the level of psychiatric impairment is to be considered but is not determinative of the VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). The record reflects that, in August 2007, the Veteran was prescribed antipsychotics for sleep and some auditory hallucinations. A September 2008 VA treatment record reflects that the antipsychotics help with the Veteran's sleep and voices. A January 2009 VA treatment record reflects that the Veteran was prescribed medication, in part, for auditory hallucinations. August 2009, November 2009, May 2010, and September 2010 VA treatment records note that the Veteran's medication helps with his auditory hallucinations. A March 2011 VA treatment record reflects that the Veteran was experiencing high anxiety, irritability, isolating behaviors, depression, less improvement in global functioning and tolerance of others, anger, and agitation. The Veteran was prescribed medication for delusions. The Veteran was acceptably dressed and groomed, cooperative, alert and oriented to person, time, place, and situation, and had logical and goal directed thought process. He denied suicidal and homicidal ideation, ideas of reference, obsession, compulsions, and hallucinations. The Veteran's insight and judgement were fair. The Veteran was provided a VA examination in August 2011, however, the Board finds that this VA examination has little to no probative value as it ignores most of the Veteran's PTSD symptoms as consistently reflected in the Veteran's VA treatment records. An August 2011 VA treatment record reflects that the Veteran was experiencing high anxiety, irritability, isolating behaviors, depression, less improvement in global functioning and tolerance of others, anger, and agitation. The Veteran was experiencing auditory hallucinations and took medication that sometimes helped. The Veteran was acceptably dressed and groomed, cooperative, alert and oriented to person, time, place, and situation, and had logical and goal directed thought process. He denied suicidal ideation, delusions, ideas of reference, obsession, compulsions, and hallucinations. The Veteran's insight and judgement were fair. In an October 2011 statement, the Veteran reported that he was experiencing homelessness on and off, had only distant relationships with his family (except for his mother), was unable to maintain employment, did not have close friends or participate in social activities, had not maintained any type of relationship with friends, had angry outbursts with family, and did not care about anyone or anything. VA treatment records from February 2012 to May 2013 consistently reflect that the Veteran was experiencing high anxiety, irritability, moodiness, isolating behaviors, depression, anger, and less improvement in global functioning and tolerance of others. The Veteran was taking medication for auditory hallucinations. The Veteran was acceptably dressed and groomed, cooperative, alert and oriented to person, time, place, and situation, and had logical and goal directed thought process. He denied suicidal ideation, delusions, ideas of reference, obsession, compulsions, and hallucinations. The Veteran's insight and judgement were fair. The Veteran was provided a VA examination in September 2013, however, the Board finds that the September 2013 VA examination has little to no probative value as it ignores most of the Veteran's PTSD symptoms as consistently reflected in the Veteran's VA treatment records. As previously stated, the Veteran was granted a 100 percent rating for his service-connected PTSD effective September 11, 2014, due to his participation in the Psychosocial Residential Rehabilitation Treatment Program. The Veteran finished the program on October 24, 2014. A November 2014 VA treatment record reflects that the Veteran was experiencing high anxiety, irritability, isolating behaviors, moodiness, and less improvement in global functioning and tolerance of others. The Veteran reported having worsening problems with his memory. The Veteran was prescribed medication because he was hearing voices. The Veteran was acceptably dressed and groomed, cooperative, alert and oriented to person, time, place, and situation, and had logical and goal directed thought process. He denied suicidal and homicidal ideation, delusions, ideas of reference, obsession, compulsions, and hallucinations. The Veteran's insight and judgement were fair. A February 2015 VA treatment record reflects that the Veteran was experiencing high anxiety, irritability, isolating behaviors, moodiness, agitation, and no improvement in global functioning and tolerance of others. The Veteran was prescribed medication for auditory hallucinations. The Veteran was acceptably dressed and groomed, cooperative, alert and oriented to person, time, place, and situation, and had logical and goal directed thought process. The Veteran's long-term memory was noted to be good and his remote and recent memory were noted to be fair. He denied suicidal and homicidal ideation, delusions, ideas of reference, obsession, compulsions, and hallucinations. The Veteran's insight and judgement were fair. The Board finds that the April 2015 VA examination provided to the Veteran has little to no probative value as it is internally inconsistent and ignores most of the Veteran's PTSD symptoms as consistently reflected in the Veteran's VA treatment records. VA treatment records from June and October 2015, and February 2016 reflect that the Veteran was experiencing high anxiety, irritability, almost complete isolation from others, moodiness, agitation, and no improvement in global functioning and tolerance of others. The Veteran was prescribed medication for auditory hallucinations. The Veteran was acceptably dressed and groomed, cooperative, alert and oriented to person, time, place, and situation, and had logical and goal directed thought process. The Veteran's long-term memory was noted to be good and his remote and recent memory were noted to be fair. He denied suicidal and homicidal ideation, delusions, ideas of reference, obsession, compulsions, and hallucinations. The Veteran's insight and judgement were fair. A June 2016 VA treatment record reflects that the Veteran believed his PTSD symptoms were worsening, and that he was having greater problems with anger, agitation, stress, and dealing with others. The Veteran also reported anxiety, irritability, almost complete isolation from others, moodiness, agitation, and depression. It was noted that the Veteran had no improvement in global functioning and tolerance of others. The Veteran was prescribed medication for auditory hallucinations. The Veteran was acceptably dressed and groomed, cooperative, alert and oriented to person, time, place, and situation, and had logical and goal directed thought process. The Veteran's long-term memory was noted to be good and his remote and recent memory were noted to be fair. He denied suicidal and homicidal ideation, delusions, ideas of reference, obsession, compulsions, and hallucinations. The Veteran's insight and judgement were fair. An October 2016 VA treatment record reflects that the Veteran reported disassociating from reality. The Veteran also reported anxiety, irritability, almost complete isolation from others, moodiness, agitation, and depression. It was noted that the Veteran had no improvement in global functioning and tolerance of others. The Veteran was prescribed medication for auditory hallucinations. The Veteran was acceptably dressed and groomed, cooperative, alert and oriented to person, time, place, and situation, and had logical and goal directed thought process. The Veteran's long-term memory was noted to be good and his remote and recent memory were noted to be fair. He denied suicidal and homicidal ideation, delusions, ideas of reference, obsession, compulsions, and hallucinations. The Veteran's insight and judgement were fair. During the October 2016 Board hearing, the Veteran testified that he had trouble sleeping, got very easily irritated when around others resulting in self-isolation, had problems maintaining relationships with friends and family, and was angry. VA treatment records from March 2017 to November 2020 consistently reflect that the Veteran was experiencing anxiety, irritability, almost complete isolation from others, moodiness, agitation, and no improvement in global functioning and tolerance of others. The Veteran was noted to have persistent negative beliefs or expectations about self, others, and the world; persistent negative emotional state including fear, horror, anger, guilt, and shame; markedly diminished interest or participation in significant activities; and detachment and estrangement from others. The Veteran was prescribed medication for auditory hallucinations. The Veteran was acceptably dressed and groomed, cooperative, alert and oriented to person, time, place, and situation, and had logical and goal directed thought process. The Veteran's long-term memory was noted to be good and his remote and recent memory were noted to be fair. He denied suicidal and homicidal ideation, delusions, ideas of reference, obsession, compulsions, and hallucinations. The Veteran's insight and judgement were fair. A March 2020 VA examination reflects the examiner's opinion that the Veteran's PTSD resulted in 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. In establishing the diagnostic criteria for PTSD, the VA examiner noted that the Veteran experienced irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, feelings of detachment or estrangement from others, and persistent negative emotional state. The VA examiner also noted that the Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. Finally, an opinion was obtained in October 2021 in which the VA clinician noted that the evidence indicates reports of delusions or hallucinations beginning in 2007, when antipsychotic medication was prescribed, and that they have continued to the present time. The VA clinician also noted that the fact that VA prescribed medication to treat auditory hallucinations in 2007 is significant and would indicate the presence of symptomology severe enough to require antipsychotic medication, as antipsychotic medication typically has more side effects that can be more serious than the antidepressant and anxiolytic classes of psychotropic medications. The Board finds that, after resolving any benefit of reasonable doubt in the Veteran's favor, a 100 percent evaluation is warranted for the Veteran's PTSD from November 1, 2010, to September 10, 2014, and from November 1, 2014, to February 4, 2021. The record reflects that the Veteran's PTSD resulted in total occupational and social impairment. The Veteran was not employed during the time period on appeal due to his PTSD symptoms, including irritability, angry outbursts, anxiety, depression, chronic sleep impairment, intolerance of other, and difficulty in adapting to stressful environments, including work and a work-like setting. Thus, the Veteran's PTSD resulted in total occupational impairment. The Veteran's PTSD symptoms during the time period on appeal included persistent auditory hallucinations for which antipsychotic medications were prescribed, self-isolating behavior, difficulty in maintaining relationships, feelings of detachment and estrangement from others, and intolerance of others, all of which resulted in the Veteran's almost complete social isolation. Thus, the Veteran's PTSD resulted in total social impairment. The Board notes that there is no evidence that the Veteran experienced memory loss of his own occupation or gross impairment in thought processes or communication. In addition, the Veteran was consistently noted to be oriented to time, place, person, and situation. However, the Board finds that an evaluation of 100 percent for the Veteran's service-connected PTSD is appropriate from November 1, 2010, to September 10, 2014, and from November 1, 2014, to February 4, 2021, as the evidence establishes that the symptoms experienced by the Veteran resulted in total occupational and social impairment for the reasons stated above. The Board acknowledges the effective date of an award of an increased evaluation can be assigned up to one year prior to the date of an increased rating claim if it is factually ascertainable that an increase in disability occurred during this period. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Here, the Veteran's treatment records reflect that the Veteran's symptomatology, as described above, began over a year prior to the Veteran's November 2010 increased rating claim. Thus, the Board finds there is not a factually ascertainable increase in disability in the one-year period prior to the Veteran's November 2010 increased rating claim, making the effective date provisions of 38 U.S.C. § 5110(a) inapplicable in this case. 2. Entitlement to TDIU is dismissed. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. Id. The Veteran's TDIU claim is part and parcel of his November 2010 increased rating claim for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). For the reasons stated above, the Veteran has been granted a 100 percent schedular rating for his PTSD for the entire appeal period. A grant of a 100 percent disability rating does not always render the issue of TDIU moot. Rather, VA's duty to maximize a claimant's benefits includes consideration of whether his service-connected disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008) (VA must consider SMC for a TDIU claim despite 100 percent disability rating if VA finds a separate disability supports a TDIU). As an initial matter, the Board notes that the Veteran was granted SMC pursuant to 38 U.S.C. § 1114(s) from September 12, 2008, to February 1, 2013. Thus, granting TDIU prior to February 1, 2013 is moot as the Veteran was already granted SMC during this time period. From February 2, 2013, the Veteran is in receipt of a 100 percent rating for his PTSD. While the Veteran has other service-connected disabilities that may impact his ability to work, he does not have a single disability that prevents him from working without consideration of his PTSD. Therefore, the findings of Bradley are not applicable in this case, and the issue of entitlement to a TDIU is moot as the Veteran is in receipt of a schedular 100 percent rating for his PTSD for the entire period on appeal. Accordingly, a TDIU is not warranted, and that inferred claim must be dismissed. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.