Citation Nr: 21076448 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-51 092 DATE: December 23, 2021 ORDER For the entire period on appeal, entitlement to an initial disability rating of 100 percent for posttraumatic stress disorder (PTSD) is granted. The appeal seeking entitlement to a total disability rating based upon individual unemployability (TDIU) is rendered moot and is therefore dismissed. REMANDED Entitlement to an effective date prior to September 29, 2014 for the award of service connection for PTSD is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, his PTSD symptoms more nearly approximate total occupational and social impairment. 2. For the entire period on appeal, the Veteran is in receipt of a total (100 percent) schedular disability rating for PTSD and he has no other service-connected disabilities. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for an initial disability rating of 100 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9411. 2. For the entire period on appeal, the matter of the Veteran's entitlement to a TDIU is rendered moot by the award of a total (100 percent) schedular disability rating for PTSD, leaving no question of law or fact to decide regarding that issue. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from September 1990 to September 1994. In January 2020 Third Party Correspondence, the Veteran, through his representative, withdrew his claims for service connection for a bilateral eye condition, headaches, a bilateral shoulder condition, a right hand condition, a back condition, bilateral hearing loss, a bilateral knee condition, a respiratory condition, and a right foot condition. In January 2020 Correspondence, VA confirmed the Veteran's withdrawal of these claims and discontinued action on those appeals. In his November 2018 and February 2020 substantive appeals, the Veteran requested videoconference hearings before the Board. However, in April 2021 Third Party Correspondence from his representative, the Veteran withdrew his request for a Board hearing. I. Increased Ratings Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. 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 a veteran is diagnosed with multiple disabilities of the same body part or 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 him through his senses. See Layno, 6 Vet. App. at 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. The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. Under the General Rating Formula, a 50 percent rating is warranted if there is occupational and social impairment with reduced reliability and productivity due to such symptoms 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. Id. A 70 percent rating is warranted if there is 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. A 100 percent rating (total occupational and social impairment) is warranted 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. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). 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, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, 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. Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's General Rating Formula is 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. However, the Court further indicated that without those examples, differentiating between rating evaluations would be extremely ambiguous. In this matter, the Veteran is currently in receipt of an initial disability rating of 50 percent for PTSD for the entire period on appeal. He asserts that a higher rating is warranted. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD symptoms and level of impairment more nearly approximate the criteria for a 100 percent disability rating. First, the Veteran has had persistent hallucinations during the entire period on appeal. In an April 2021 lay statement, the Veteran wrote, "In 2014, I started hearing voices and sounds that weren't there. I would hear Sgt. [name] or think I would see him in a crowd, but I knew he wasn't there. This happened when I was feeling more anxiety and stress." The Veteran reported to VA treatment providers that he hears movements, voices, knocking, and scratching, and sees shadows and flashes of light in his peripheral vision. See VA treatment records dated July 2015 to April 2020. Statements, such as these, made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the Veteran has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Furthermore, multiple VA treatment providers have assessed the Veteran with auditory and visual hallucinations and he has been prescribed Quetiapine for hallucinations. See VA treatment records dated September 2016 to April 2020. Second, the Veteran has demonstrated at least some degree of danger of hurting others. Throughout the period on appeal, the Veteran reported that he has gotten into physical fights when playing basketball with friends and that he worries about hurting others when he gets angry. See July 2015 VA mental health consult; August 2017 VA examination report; April 2021 lay statement from Veteran. In a July 2017 lay statement, A.B. stated that he had known the Veteran for 15 years, and that in the last 3 years, the Veteran's anger had gotten extremely worse. A.B. wrote, "You can't even hold a normal conversation with him because he will snap and start talking loud; the conversation you [were] talking about will change[.] [Y]ou'll be like what in the world is he talking about, and it makes you feel scared cause the look in his eyes makes you feel like he's getting ready to hurt you." In an April 2021 lay statement, the Veteran wrote, "At work, I would get into fights with my coworkers. In 2012, I got into a fight with a coworker over something small and was suspended for two months. People at work avoided me because I was always losing my temper and snapping at them. I couldn't trust anyone and would get so angry, lashing out when someone startled me. In 2015, I was terminated when I lost my temper with my supervisor and I haven't worked since that time." Third, the Veteran has experienced an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. During the August 2017 VA examination, the Veteran reported that his motivation had decreased significantly and that he only showers or shaves when his mother and girlfriend tell him to. In an April 2018 lay statement, the Veteran wrote, "I have no motivation anymore. I want my family to be taken care of but that is the extent of my motivation. I do not even see the point in taking care of myself. I do not do my hair. I must be made to shower and shave, but I do not see the point when I am not seeing anyone. I may wear the same clothes for three to four days at a time. People who take care of themselves are happy people, and I am not." In an April 2021 lay statement, the Veteran wrote, "Since 2014, my depression worsened as well. If I didn't have a doctor's appointment, I would stay on my mom's porch and not go anywhere for days. I wouldn't take a shower, change my clothes, or even brush my teeth. I just didn't feel like it was worth the effort." In a lay statement from the Veteran's girlfriend, K.S., that was received April 2021, she wrote, "This man won't even keep up with hygiene anymore. At home we have to ask him to shower & shave. He has very little motivation to do anything." Additionally, the record reflects that the Veteran has had a decreased appetite and may go all day without eating. See VA treatment records dated July 2015 to March 2020; August 2017 VA examination report. Indeed, during the May 2018 VA examination, the Veteran reported that he had lost about 15 pounds in the 4 months prior due to his decreased appetite, and he reported in a December 2018 VA mental health consult that he had "lost a lot of weight this past year" due to his decreased appetite. Fourth, the evidence demonstrates that the Veteran's PTSD symptoms have resulted in a high degree of occupational and social impairment. Although the Veteran was employed as a forklift operator until June 2015, the record reflects that his PTSD symptoms greatly impacted his ability to function in an occupational setting. As noted previously, in an April 2021 lay statement, the Veteran reported that he would get into fights with coworkers which led to a two-month suspension in 2012, that people avoided him because he was always losing his temper and snapping at them, and that he was terminated when he lost his temper with his supervisor. In an April 2021 private vocational opinion, P.M., a Certified Rehabilitation Counselor, opined that the Veteran's PTSD symptoms would preclude him from being able to perform the essential work functions of his past work or any competitive job in the national economy, and that he was incapable of sustaining gainful and competitive employment since at least September 29, 2014. The Veteran's PTSD symptoms have also greatly impacted his social functioning. Throughout the period on appeal, the Veteran has reported that he isolates himself and avoids going places where he will have to interact with others. See VA treatment records dated July 2015 and December 2018; April 2021 lay statement from the Veteran. In a July 2017 lay statement, the Veteran's neighbor, V.B. wrote, "He doesn't participate in any parties or gatherings our neighbors or family have. If it's not at this house he's not ever coming. If his house becomes crowded (according to him) he'll isolate himself or shut things down." In an April 2021 lay statement, the Veteran's girlfriend, K.S., wrote, "He [would] rather be alone. So we don't have company because more than 2 people i[s] a crowd to him. [The Veteran] keeps himself isolated 80% - 90% of the time. And we do love him dearly. The family feels he has some sort of social phobia. [He] may have something wrong because he does not make eye contact when talking to others. This is a problem as we can not do nor go anywhere as a family." In an April 2021 lay statement, the Veteran stated that his relationships have suffered due to his PTSD symptoms, writing, "I have been with a woman off and on for the past ten years. We had a child together, but my PTSD made it difficult to keep a relationship. I would become depressed and avoid everyone for a month or two, including the mother of my child. She could not depend on me to be there for her emotionally or financially. I was always lost in my head, worrying about dangers and obsessing about safety, so I could not give focus on anyone else. I would see my four-year-old periodically, but I did not have a relationship with my other children. I only had a relationship with my mother because I depended on her for a place to live. I could not trust anyone enough to make friends and avoided people in general." Based on the foregoing, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that his PTSD has resulted in total occupational and social impairment for the entire period on appeal, as the rating criteria specifically contemplate his symptoms of persistent hallucinations, persistent danger of hurting others, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. For these reasons, the Board finds that the Veteran's PTSD symptoms more nearly approximate the criteria for an initial disability rating of 100 percent for the entire period on appeal. A 100 percent rating is the maximum schedular rating allowed under the General Rating Formula. II. TDIU As to the Veteran's 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 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). Here, the Veteran is in receipt of a total (100 percent) schedular disability rating for PTSD for the entire period on appeal. The Veteran does not have any other service-connected disabilities. Therefore, entitlement to SMC is not for consideration, and entitlement to a TDIU is rendered moot. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In the October 2016 rating decision on appeal, the AOJ awarded service connection for the Veteran's PTSD, effective September 24, 2015. In October 2017, the Veteran filed a timely notice of disagreement with the effective date assigned in October 2016 rating decision. Although the AOJ issued a May 2018 rating decision that granted an earlier effective date of September 29, 2014 for the award of service connection for PTSD, the AOJ has yet to issue a statement of the case (SOC) that addresses this. A remand is thus required for the AOJ to issue a SOC. 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: Send the Veteran a SOC that addresses the issue of entitlement to an effective date prior to September 29, 2014 for the award of service connection for PTSD. If the benefits sought are denied, he should be sent notice of his options for appeal. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.