Citation Nr: 21077179 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 20-05 590 DATE: December 28, 2021 ORDER A 100 percent schedular rating for service-connected posttraumatic stress disorder with unspecified depressive disorder (PTSD) is granted, effective April 24, 2017. A total disability rating based upon individual unemployability due to service-connected disability (TDIU) is dismissed. FINDINGS OF FACT 1. From April 24, 2017, Veteran's service-connected PTSD was manifested by symptoms including the intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) and symptoms of the same type and degree as memory loss for names of close relatives, own occupation, or own name, resulting in total social and occupational impairment. 2. From April 24, 2017, the issue of entitlement to a TDIU is rendered moot by virtue of the grant herein of the 100 percent schedular rating for PTSD. CONCLUSIONS OF LAW 1. From April 24, 2017, the criteria for a 100 percent schedular rating for service-connected PTSD were met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. From April 24, 2017, the claim of entitlement to a TDIU is moot. 38 U.S.C. §§ 1114, 1155, 5110, 5107; 38 C.F.R. §§ 3.350, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service for Department of Veteran's Affairs (VA) compensation purposes from July 1966 to April 1969. The Veteran appeared in a hearing before a Veterans Law Judge (VLJ) of the VA Board of Veterans' Appeals (Board) at the VA Regional Office (RO) in December 2021. 1. Entitlement to a rating in excess of 70 percent for service-connected PTSD. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two ratings are potentially applicable, the higher rating will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The RO issued a May 2012 rating decision granting service connection for PTSD and assigning the same an initial 30 percent rating, effective October 24, 2011. By a June 2018 rating decision, the RO granted the Veteran's April 24, 2018, claim of entitlement to an increased rating or his service-connected PTSD, assigning the same a 70 percent rating, effective April 24, 2018. The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from one year before the claim was filed; in this case, April 24, 2017, one year prior to the Veteran's April 24, 2018, claim, until VA makes a final decision on the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). The record before the Board contains voluminous post-service treatment records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). Under DC 9411, for rating the severity of PTSD, in pertinent part, a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is 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, DC 9411. The use of the term "such as" in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the 'frequency, severity, and duration' of a Veteran's symptoms 'play an important role' in determining the disability level). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The Veteran bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In a May 2018 Disability Benefits Questionnaire (DBQ), the examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported that he could not sleep with his spouse due to nightmares. He asserted that she had to help him dress at least twice weekly and had to remind him to bathe daily. He reported frequent contact with most of his children and denied other socialization. He reported that he stayed in his room all day. The examiner reported that the Veteran's PTSD, diagnostically, included, recurrent, involuntary, and intrusive distressing memories, recurrent distressing dreams, intense or prolonged psychological distress at exposure to internal and external cues, marked physiological reactions to internal and external cues, avoidance or efforts to avoid distressing memories, thoughts, and feelings, persistent, distorted cognitions, a persistent negative emotional state, markedly diminished interest in significant activities, feelings of detachment or estrangement, problems with concentration, and sleep disturbance, which caused clinically significant distress and impairment. The Veteran presented with suicidal ideation, depressed mood, chronic sleep impairment, mild memory loss of short-term and long-term memory, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, neglect of personal appearance and hygiene, and the intermittent inability to perform the activities of daily living. His affect was euthymic, appropriative, and reactive, he was neatly and appropriately dressed, cooperative, pleasant, and engaged. His speech was normal, his thinking was logical and goal-directed, and there was no sign of psychosis. His motor activity was normal, and he was frequently tearful. He showed short-term memory loss and poor concentration. He reported experiencing intrusive memories that disrupt his functioning, frequent nightmares, deep feelings of guilt and sadness, and asserted that his depression has intensified since his last DBQ. He complained of a lack of energy, a lack of motivation, anhedonia, hopelessness, and sleep disturbance. In a November 2019 DBQ, the examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran denied marital problems and reported regular contact with family and friends. He reported that his depression and anxiety have increased. The examiner described the Veterans' PTSD, diagnostically, in an almost identical fashion as the previous examiner, recited above. The Veteran presented with depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in adapting to stressful circumstances, impaired impulse control, such as unprovoked irritability with periods of violence, and neglect of personal appearance and hygiene. The examiner reported that the Veteran was alert and oriented, well-groomed, pleasant, and cooperative, with an anxious mood and an affect that was mood congruent. There was no disturbance in speech, memory or thought processes, insight and judgment were good, and there were no hallucinations or delusions. In November 2021, the Veteran's spouse and sister-in-law each submitted a statement describing the Veteran's behavior, including his violent night terrors and unpredictable rage and anger. During his December 2021 Board hearing, the Veteran asserted that that he had severe memory loss, that he would begin a journey and then forget where he was going and have to pull over. He reported that he stayed in his room for 16 hours each day and has to sleep in a separate room from his wife due to nightmares. He asserted that he has very poor sleep. He discussed that he does not go out or socialize and that his wife has to remind him about his grooming. Based on the above, the Board finds that the Veteran's service-connected PTSD warrants a 100 percent schedular rating during the entire current appellate period, effective April 24, 2017. Specifically, his service-connected PTSD has been manifested by symptoms including the intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) and symptoms of the same type and degree as memory loss for names of close relatives, own occupation, or own name, resulting in total social and occupational impairment, as is contemplated by the pertinent rating criteria for a 100 percent schedular rating. 38 C.F.R. § 4.130, DC 9411. The Veteran and his spouse are competent to report as to the Veteran's difficulty maintaining his hygiene and the Veteran is competent to report as to his memory loss; these symptoms have been recorded during VA examinations by VA examiners. There is no evidence that the Veteran or his spouse are not credible in this regard and their lay statements are thus probative evidence in the current appeal. Layno, 6 Vet. App. 465, 470. In summary, the preponderance of the evidence reflects that during the entire appellate period, since April 24, 2017, the symptoms of the Veteran's service-connected PTSD approximate the criteria for a 100 percent schedular rating; the claim for an increased rating is granted. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. 2. Entitlement to a TDIU. With regard to entitlement to 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). In Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C. § 1114 (s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent and 38 C.F.R. § 3.350 (i) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating. Special monthly compensation (SMC) at the housebound rate is payable where a Veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i). In the present appeal, the Veteran is service-connected for PTSD, rated as 100 percent disabling by the decision herein, tinnitus, rated as 10 percent disabling, and bilateral hearing loss, rated as noncompensably disabling. Without service-connected disabilities independently ratable at 60 percent, separate and distinct from this PTSD, SMC is not warranted. Id. (Continued on the next page) Following the reasoning of Bradley, a TDIU must still be considered even if a Veteran has already been awarded a separate 100 percent schedular rating for a disability in order to potentially make the Veteran eligible for SMC at the (s) rate under 38 U.S.C. § 1114. Bradley, 22 Vet. App. 280; see also 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350 (i). However, the Veteran in this appeal is not eligible for SMC and the issue of entitlement to a TDIU is thus moot. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.