Citation Nr: 21006748 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-26 079 DATE: February 5, 2021 ORDER From February 2, 2009, to the present, entitlement to a 100 percent initial evaluation for service-connected posttraumatic stress disorder (PTSD) (formerly characterized as general anxiety disorder with PTSD and anxiety disorder, not otherwise specified (NOS)) is granted, subject to regulations governing the payment of monetary awards. From February 2, 2009, to May 21, 2019, basic eligibility to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, of the United States Code has been established. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to May 22, 2019, has been rendered moot and is dismissed. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran’s service-connected PTSD resulted in total social and occupational impairment from February 2, 2009, to the present. 2. By virtue of the Board's allowance, the Veteran, who was discharged from service under conditions other than dishonorable, has a total disability evaluation from February 2, 2009, to May 21, 2019, permanent in nature, as a result of a service-connected disability. 3. The Veteran is in receipt of a 100 percent schedular evaluation from February 2, 2009, to the present. CONCLUSIONS OF LAW 1. From February 2, 2009, to the present, the criteria for a 100 percent initial evaluation for the Veteran's service-connected PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.21, 4.130, Diagnostic Code 9411. 2. From February 2, 2009, to May 21, 2019, the criteria to establish basic eligibility to DEA benefits under Chapter 35, Title 38, of the United States Code have been met. 38 U.S.C. §§ 1155, 3500, 3501, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.340. 3. The assignment of a 100 percent schedular initial evaluation for the Veteran's service-connected PTSD from February 2, 2009, to May 21, 2019, renders the TDIU appeal for the same period moot. 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United states Army from October 1963 to April 1972, to include in the Republic of Vietnam. He has been awarded a Combat Infantryman Badge, a Silver Star Medal, and a Purple Heart Medal. In an attempt to clarify several procedural matters that frame the benefits sought by the Veteran, the Board concludes that a brief recitation of pertinent facts would be helpful. The Veteran’s initial claim to establish service connection for PTSD was received by the Agency of Original Jurisdiction on February 2, 2009. This claim was granted by the AOJ in a December 2009 rating decision; a 30 percent initial evaluation for service-connected anxiety disorder with PTSD was assigned from February 2, 2009. In February 2010, the Veteran requested reconsideration of this initial evaluation, and further claimed in an April 2010 filing that this service-connected disability negatively impacted his employability. As such, a claim for TDIU is considered to be part and parcel of the Veteran’s request for reconsideration of the initial evaluation assigned for his service-connected psychiatric disability from February 2, 2009. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In response to the Veteran’s request for reconsideration and TDIU assertion, the AOJ readjudicated these issues in an August 2010 rating decision that denied entitlement to a TDIU and partially granted the Veteran’s claim for an increased initial evaluation for his service-connected psychiatric disorder; the 30 percent evaluation was increased to 50 percent, effective from February 24, 2010 – the date of the AOJ’s receipt of the Veteran’s request for reconsideration of the December 2009 rating decision. Notably, this rating decision also recharacterized the Veteran’s service-connected psychiatric disability to anxiety disorder, NOS, based on a VA examiner’s opinion that a diagnosis of PTSD was inappropriate. In November 2010, the Veteran filed claims to establish service connection for unrelated disabilities. In developing these new claims, the AOJ associated with the Veteran’s file records of VA treatment reflecting worsening psychiatric symptoms in late 2010. Noting that these records pertained to the downstream issue of the initial evaluation for the Veteran’s service-connected psychiatric disability and were put within VA’s constructive possession during the appeal period of the August 2010 rating decision, such did not become final with regard to this issue, which includes the matter of entitlement to a TDIU. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Accordingly, these matters remained pending readjudication by the AOJ. On August 24, 2014, the AOJ received a claim from the Veteran requesting an increased evaluation for his service-connected psychiatric disability, to include PTSD. Shortly thereafter, the Veteran, again, asserted that his service-connected psychiatric disability prevented him from participating in a substantially gainful occupation. In a July 2015 rating decision, the AOJ denied the Veteran’s TDIU claim and granted service connection for PTSD; a 50 percent initial evaluation was assigned from August 27, 2015 – the date that the AOJ received the Veteran’s most recent claim. Although not specifically addressed in the narrative portion of this rating decision, it appears that the AOJ’s actions did not represent an allowance of a separate award of service connection for PTSD, but rather, his service-connected psychiatric disability was recharacterized, and the assigned evaluation was continued. In August 2015, the Veteran requested reconsideration of the AOJ’s determinations regarding these two matters, and such was undertaken in an October 2015 rating decision which continued to deny the same. The Veteran initiated a formal appeal of both issues in November 2016. These issues were partially granted by the AOJ in a July 2019 Decision Review Officer (DRO) decision, wherein the evaluation for the Veteran’s psychiatric disability was increased from 50 percent disabling to 70 percent disabling, and TDIU and DEA was established – all from May 22, 2019. As these allowances did not represent a full grant of the benefits sought, the issues remained in appellate status and have been recharacterized to reflect the “staged” evaluation created and more pointedly frame the benefits remaining on appeal. In simultaneous filings in August 2019, the Veteran’s private attorney perfected these issues to the Board of Veteran’s Appeals (Board) under VA’s “legacy” appeals system and opted to continue to pursue such under the Appeals Modernization Act (AMA) via the AOJ’s Higher-Level Review lane. For reasons unclear to the Board, the AOJ denied the Veteran’s August 2019 AMA election; nonetheless, the current appeal encompasses all of the benefits sought in that matter, and thus, the matter is moot. In December 2020, the Veteran presented oral testimony in support of his appeal at a Board videoconference hearing conducted by the undersigned Veterans Law Judge. A transcript of that hearing is of record. In view of the forgoing facts, it is clear that the December 2009, August 2010, and July 2015 rating decisions did not become final regarding the assignment of the initial evaluation for the Veteran’s service-connected psychiatric disability, which has been variously characterized by the AOJ. As such, the matters remained pending since the Veteran’s initial claim (filed on February 2, 2009), and the current appeal stems from the October 2015 rating decision. Accordingly, the appeal period regarding the Veteran’s appealed issues seeking an increased initial evaluation and TDIU, the latter being part and parcel of the future, is from February 2, 2009, to the present. The issue of entitlement to DEA benefits prior to May 22, 2019, has been added to the title page as an ancillary benefit downstream from the Board’s allowance, herein. 1. Entitlement to an increased initial evaluation for service-connected PTSD, currently evaluated 50 percent disabling prior to May 22, 2019, and 70 percent disabling, thereafter Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent evaluation is warranted when 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; the Veteran’s difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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.” Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. The Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM IV, AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated DSM 5, and examinations conducted pursuant to the DSM 5 do not include GAF scores. As the Veteran’s claim for benefits was certified after August 2014, the DSM 5 criteria will be utilized in the analysis set forth below. Analysis As outlined in detail above, the present matter entails entitlement to an increased initial evaluation for service-connected PTSD, which is currently evaluated 50 percent disabling prior to May 22, 2019, and 70 percent disabling, thereafter. The appeal period for consideration of this issue is from February 2, 2009, to the present. The Veteran and his private attorney assert that his service-connected PTSD is more disabling than the currently-assigned staged initial evaluation, and that the functional impairment stemming from this service-connected disability is more congruent with total occupational and social impairment. For the reasons expressed below, the Board agrees. As an initial matter, the Board notes that there has been substantial disagreement concerning what acquired psychiatric disability or disabilities are productive of his symptoms. Nonetheless, with a few outlying exceptions, the preponderance of the medical evidence of record reflects that the Veteran’s psychiatric symptoms have met the criteria for a PTSD diagnosis throughout the entirety of the appeal period. As such, all psychiatric symptoms noted within the Veteran’s file will be attributed to this service-connected disability for the purpose of analyzing his appeal. Mittleider v. West, 11 Vet. App. 181 (1998). The record reflects that the Veteran was last employed as the president of a family-operated business in October 2007, when he stopped working and signed control of the company to another family member. Shortly thereafter, the Veteran was granted disability benefits by the Social Security Administration (SSA) based partly on his service-connected PTSD. While neither of these incidents is dispositive of the matter before the Board or occurred during the appeal period for consideration, they bear noting as relevant evidence that bolster the Veteran’s assertions. The evidence of record, to include the reports of October 2009, July 2015, and May 2019 VA psychiatric examinations, VA treatment records, and treatment records associated with a favorable decision concerning disability benefits from the SSA, reflect that the Veteran has experienced severe psychiatric symptoms prior to, and throughout, the appeal period. The Veteran has consistently reported experiencing intrusive thoughts, flashbacks, extreme irritability, avoidance, isolation, emotional numbing, hypervigilance, an exaggerated startle response, detachment and estrangement from friends and family members, disturbances of motivation and mood, and anxiety. These symptoms have been reported with increasing severity and frequency before and during the appeal period. Also, while the Veteran denied homicidal and suicidal ideation on some occasions, the Veteran has an extensive history of altercations with other parties, to include members of his business and family. Further, VA treatment records reflect that the Veteran has engaged in several bizarre behaviors, such as sitting on the roof of his shed with a loaded shotgun and additionally drawing disturbing images of violence while threatening to drown himself in a bathtub, which point to tendencies of harm to himself or others. For these reasons, the Veteran’s wife reported to VA medical professionals that she will not leave him alone in the house for any reason. Further, while the Veteran’s marriage of over 50 years remains intact, he has virtually no other social interaction, to include with his surviving children and grandchildren, and the Veteran’s wife has been upfront in reporting that the Veteran “barricades” himself in his room whenever a visitor, family member(s) or otherwise, are in his home. The Veteran asserts that his service-connected psychiatric disability is the cause of the above-noted interpersonal issues, and the evidence of record is congruent with this assertion, as his agitation, anxiety, irritability, hypervigilance, and panic are manifestations of this service-connected disability. The Board observes that the October 2009, July 2015, and May 2019 VA examination reports reflect that the examiners’ opinions that the Veteran's service-connected psychiatric disability did not result in total social and occupational impairment. However, the frequency and severity of the Veteran's psychiatric symptoms reported in these examination reports are not congruent with the Veteran's VA treatment records, to include his extreme behaviors, noted above. Moreover, based on the numerous statements from the Veteran’s family members and former business associates, it appears that the Veteran has a tendency to under-report his psychiatric symptoms, as the disability picture conveyed by those closest to him is more congruent with that depicted in the VA treatment records. The Board acknowledges that the medical evidence of record does not reflect that the Veteran experiences all of the symptoms associated with the 100 percent schedular evaluation. However, the Court has held that the symptoms enumerated under the schedule for rating mental disorders 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 disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). With this in mind, the record unambiguously shows that the Veteran has been unemployed and virtually isolated from others, except his wife, throughout the entirety of the appeal period. In sum, the most probative evidence reflects that the Veteran's service-connected PTSD resulted in total social and occupational impairment from February 2, 2009, to the present. As such, a 100 percent initial evaluation is warranted throughout the entirety of the appeal period. 2. Entitlement to basic eligibility to DEA benefits under Chapter 35, Title 38, of the United States Code prior to May 22, 2019 As discussed above, the Board has concluded that a 100 percent schedular initial evaluation for the Veteran's service-connected PTSD is warranted throughout the pendency of the appeal period under consideration (from February 2, 2009, to the present). By virtue of the Board's allowance, the Veteran, who was discharged from service under conditions other than dishonorable, has a total disability evaluation throughout the pendency of the appeal, permanent in nature, as a result of a service-connected disability. As such, basic eligibility to DEA benefits under Chapter 35, Title 38, of the United States Code is established from February 2, 2009, to May 21, 2019. 3. Entitlement to a TDIU prior to May 22, 2019 On June 7, 1999, VA's General Counsel issued VAOGCPREC 6-99, which addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, this opinion provided that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). However, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114 (s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). In light of the holding in Bradley, which takes a position contrary to the one reached in the precedent opinion, the General Counsel withdrew the June 1999 precedent opinion in November 2009. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the decision in Bradley recognizes that a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VAOGCPREC 6-99. In this case, the Veteran filed his claim to establish TDIU during the pendency of his claim to establish service connection for PTSD, which in turn, resulted in the claim for an increased initial evaluation. As discussed above, the Board has determined that a 100 percent evaluation for this service-connected psychiatric disability is warranted from the date of service connection. As the Veteran's claim for TDIU is considered part and parcel of his claim for a psychiatric disability, the effective date of any TDIU award could not pre-date the assignment of the 100 percent initial evaluation for this disability. Here, the Board notes the precedents of Buie and Bradley; however, while the 100 percent schedular evaluation for service-connected PTSD fulfills half of the criteria for SMC at the housebound level, he does not have another service-connected disability or multiple, related service-connected disabilities evaluated 60 percent disabling. Therefore, application of Bradley and/or Buie for consideration of entitlement to SMC would not be fruitful, and as noted in Green, the claim for TDIU is rendered moot, and it is dismissed. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.