Citation Nr: 21007033 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-09 003A DATE: February 8, 2021 ORDER Entitlement to an initial rating of 100 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is moot and is dismissed. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s service-connected PTSD resulted in total occupational and social impairment. 2. For the entire period on appeal, the Veteran was in receipt of a 100 percent rating for PTSD and did not have other service-connected disabilities, without consideration of his PTSD, which prevented him from obtaining and maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial 100 percent rating for PTSD have been met for the entire period on appeal. 38 U.S.C. § § 1155 (2012); 38 C.F.R. § §§ 4.7, 4.130, Diagnostic Code 9411 (2019). 2. Entitlement to a TDIU for the period beginning August 13, 2018, is moot. Vettese v. Brown, 7 Vet. App. 31 (1994); Holland v. Brown, 6 Vet. App. 443 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from October 1966 to July 1970, October 1976 to October 1980, and March 1982 to March 1986. The Veteran died in December 2018. The appellant in this case is the Veteran’s surviving spouse, who has been properly substituted in this appeal. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board. In a September 2019 decision, the Board denied the claim currently on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veteran Claims (Court). In an August 2020 Order, the Court granted a Joint Motion of the parties, vacated the Board’s decision, and remanded the case to the Board for action consistent with the Joint Motion. Increased Rating – PTSD The appellant has asserted that the Veteran should have a higher rating for his PTSD as his symptoms were worse than those contemplated by the currently assigned rating. At his September 2018 videoconference hearing, the Veteran testified about the functional limitations and symptoms of his PTSD. He reported that he was having a hard time sleeping at night; he was getting flashbacks; he was no longer social; he no longer liked to do the things he used to do, as he had lost motivation; he got irritable; and that he was easily startled. Additionally, he indicated that he was getting suicidal thoughts at least once a month. With respect to the impact of his PTSD on his social life, the Veteran reported that he was no longer associating with friends, and that his PTSD impacted his marriages. In a September 2018 statement, the appellant provided an account of the impact of the Veteran’s PTSD on himself and those around him. She explained that she was married to the Veteran for 25 years, as his third wife, and she described the Veteran as a “very lonely guy”, socially. Further, she reported that holidays were horrible for them because it caused him a lot of stress and anxiety when people came around. She explained that they tended to stay alone because of issues with the doorbell or the phone ringing, noises, and/or having people around him. Additionally, the appellant noted that the Veteran overreacted when he lost his temper; and that unexpected events or daily social activities set him off. At a December 2010 VA examination, the Veteran reported having occasional disturbing dreams, approximately and at least once or twice a month. Additionally, he reported that that he did not have close friends in his life at the time of the VA examination, he preferred to spend more time by himself, and he was a loner. The Veteran stated that he did not attend family gatherings, if he was able to avoid them. He also indicated that he was hypervigilant and that he had anger problems, such as blowing up at his wife, if he was not taking his medication, citalopram. On mental status examination, the VA examiner noted that the Veteran had good hygiene; his psychological insight and awareness were limited, which restrained the amount of information he was able to spontaneously provide during the interview portion of the examination. The VA examiner noted that the Veteran’s mood was dysphoric, anxious, guarded, and often defensive; affect was blunted, and consistent with his mood; thought processes were, at times, fragmented and tangential, whereas at other times, they were linear and goal-directed; and there was no evidence of hallucinations, and/or active homicidal and/or suicidal ideations. The VA examiner also remarked that the Veteran had difficulty with performing self-care, although this was “limited more by his back problems and difficulty moving around than by his psychological symptoms.” The VA examiner noted that the Veteran was prescribed medication because of the intensity of his symptoms, which included angry outbursts. The VA examiner determined that the Veteran’s symptoms included, depressed mood; suspiciousness; memory problems; blunted affect; disturbances of motivation and mood; inability to establish and maintain effective relationships; difficulty in family role functioning, namely arguments between him and his wife; inability to engage in recreational and leisurely pursuits, due to a combination of factors, both physical and psychiatric. The VA examiner described the prognosis of the Veteran’s PTSD as “guarded.” In a May 2012 psychiatric evaluation report, Dr. S.C. noted that the Veteran reported symptoms, including and not limited to, crying spells, occasional feelings of worthlessness and helplessness; nightmares from time to time; and flashbacks. On mental status examination, Dr. S.C. observed that the Veteran was alert, groomed, and had good hygiene; he was oriented and pleasant, with intermittent eye contact; speech as loud and pushed; mood was anxious; affect was congruent; and thought flow included racing thoughts, ruminating, circumstantial, tangential speech. Further, she observed that the Veteran’s thought content was normal within limits; he denied audio hallucinations and/or being suicidal; but that his insight and judgement were poor. On assessment of his mental disability, Dr. S.C. remarked, in pertinent part, that the Veteran had some internal cues that caused him agitation and anxiety; he found himself avoiding people, and he experienced social impairment, such as avoiding crowds at whatever costs. Further, she noted that the Veteran had irritability, outbursts of anger, hypervigilance, as well as an exaggerated startled response. She additionally determined that the Veteran met the criteria for major depressive disorder. In a May 2013 psychiatric evaluation report, Dr. S.C. noted that the Veteran met the clinical criteria for a diagnosis of PTSD. On mental status examination, Dr. S.C. observed that the Veteran was alert and oriented. She noted that the Veteran experiences visual hallucinations in the form of flashbacks, but no suicidal thoughts. His eye contact was good. His speech was loud, and he ruminates. Dr. S.C. noted some circumstantial and tangential speech and that the Veteran’s flashbacks seemed to be of the dissociative type. Additionally, in a separate May 2013 psychological testing evaluation, a clinical psychologist, Dr. C.H., explained that the Veteran reported having sad and depressed mood periodically since the 1980s. She also noted that the Veteran had recently reported having increased tearfulness and loss of interest, and although he denied having active suicidal ideations, he reported having occasional passive suicidal ideations, thinking that he would be better off dead. Dr. C.H. also noted that the Veteran further reported having additional symptoms, to include sleep impairments, nightmares, irritability, angry outbursts, flashbacks, and exaggerated startled response. On mental status examination, Dr. C.H. observed that the Veteran was alert and fully oriented; he was casually dressed; his grooming was adequate; his eye contact was good, appearing to be forthright in the interview portion of the examination; his affect was sad; and his was mood depressed. Dr. C.H. noted that the Veteran denied having active suicidal ideations, although he reported some passive suicidal thoughts, without plan or intent; and he denied having homicidal ideations, as well as visual and/or auditory hallucinations. Further, the examiner indicated that no delusions were apparent; his thoughts were logical and organized; his motor activity was generally calm and unremarkable; his speech was of normal rate and volume his memory appeared intact; and that his abstract ability was appropriate for his education level. In an April 2015 initial therapy evaluation, the Veteran’s former psychotherapy counselor, R.L., noted that the Veteran reported feeling depressed all the time; he had a sense of low self-worth and felt like the world was closing in on him; he had bouts of crying spells and felt helpless; he had passive thoughts of suicide, in which he stated that “it would be better if I were dead”, but did not want to die, had no plan of killing himself, and denied any self-harming behaviors. Additionally, R.L. noted that the Veteran reported experiencing symptoms of being easily irritated; an easily startled response, specifically, jumping at loud noises; “OCD tendencies surrounding where he puts things and gets angry if somebody moves his things around; flashbacks; nightmares; lashing out verbally; being easily upset; and having significant anxiety around groups. With respect to social history, R.L. noted that the Veteran had been married three times, and at the time of this evaluation, was living with his third wife, with his first marriage lasting six months, and his second marriage lasting 20 years. She further indicated that the Veteran denied having community or social support. On mental status examination, R.L. observed that his activity and behaviors were calm at the examination, although his mood appeared depressed. She further noted that he had a dulled affect; he teared up off and on throughout the session; his speech was within normal limits; he did not present with any hallucinations; delusions were not present; he maintained appropriate eye contact; he denied having any thoughts of suicide; his thought processes were clear and organized; he was evasive with some topics and over inclusive with others; he was oriented times 4 (i.e. oriented to time, place, person and situation); and his abstraction ability appeared appropriate to educational level. She explained that the Veteran was struggling with PTSD symptoms, and most notably, was becoming easily irritated and angry; and that financial and family stressors exacerbated his depression symptoms. At a March 2017 VA examination, the Veteran reported that he experienced irritability, anxiety, panic symptoms, sleep impairments, hypervigilance, shortness of breath, fear, and felt the desire to “run away.” He further noted that he struggled to make and keep friends. Upon mental status examination, the VA examiner observed that Veteran was generally friendly and cooperative; he was oriented to person, place, time, and situation; his thoughts were logical, coherent, and goal directed, with no evidence of hallucinations or delusions; mood appeared depressed, with appropriate effect; his attention and cooperation were without difficulty; and that his short-term and long-term memory were intact. Further, the VA examiner observed that the Veteran’s insight and good judgment were fair. Additionally, the VA examiner indicated that the Veteran denied having suicidal and/or homicidal ideations. The examiner noted that the Veteran had the following PTSD symptoms: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The VA examiner remarked, in pertinent part, that the Veteran was limited if in situations with large amounts of people, as it made him anxious, irritable, hypervigilant, and caused him to look for avenues to leave the situation. The VA examiner further noted that when by himself, the Veteran did not experience these issues, but when he was in a situation with large groups of people, he had difficulty focusing, with decreased attention. The examiner determined that the functional impact of the Veteran’s PTSD, with depressive features manifested 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 March 2018, the Veteran was evaluated by another psychologist, Dr. R.S., who disclosed that he saw the Veteran only once, on this particular occasion, for an independent medical evaluation, but also, had undertaken a total review of the Veteran’s file. He explained that he evaluated the Veteran, while seated with his wife, the appellant, at their home. In pertinent part, from a comprehensive, detailed evaluative report, Dr. R.S. indicated that the Veteran reported symptoms, including suicidal ideations, sleep disturbances, insomnia/hypersomnia, nightmares, social withdrawal/isolation, irritability, hostility/irritability/psychomotor agitation, and paranoia. On mental status evaluation, Dr. R.S. observed that the Veteran was alert and oriented; his speech was clear, relevant and goal directed, although responses were “perseverative”; his thought content was organized; his mood was depressed and anxious. Additional symptoms included feelings of guilt/worthlessness, poor self-esteem, psychomotor agitation/retardation, diminished frustrating tolerance, anhedonia, blunt, flat or inappropriate affect, and paranoia. Dr. R.S. also noted that the Veteran’s affect was congruent, with periods of auditory hallucinations, although the Veteran denied having visual hallucinations. The Veteran had periods of suicidal ideations, although without plan, wish or intent; he denied homicidal ideations. The examiner further noted that the Veteran’s memory was fair and that he demonstrated fair insight and judgement. Summarily, Dr. R.S. concluded that the Veteran was totally disabled emotionally and unable to function in any job in any capacity. He also noted that substance abuse, including alcohol and/or drugs were not a contributing factor. In an accompanying March 2018 psychiatric/psychological impairment questionnaire that Dr. R.S. completed, he identified the positive clinical findings that demonstrated and/or supported his diagnosis, which were psychiatric symptoms, including deficiencies in family relations; deficiencies in mood; persistent irrational fears; difficulty in adapting to stressful circumstances; persistent delusions or hallucinations; intrusive recollections of a traumatic experience; persistent danger of hurting self or others; deficiencies in work or school; unprovoked hostility and irritability; inability to establish and maintain effective relationships; depression affecting the ability to function independently, appropriately, and effectively; deficiencies in judgment; neglect of personal appearance and hygiene; and suicidal ideations. Medical treatment records reflect that the Veteran complained of and/or manifested symptoms, such as depressed mood; irritability; hypervigilance; isolation; avoidance; depression; difficulty adapting to stressful circumstances; intrusive recollection of traumatic experiences; and a lack of maintenance of minimal personal hygiene. Further, a review of the record shows that the Veteran has issues maintaining regular employment. According to his Application for Increased Compensation Based on Unemployability, the Veteran has not worked since July 2008 as a result of his PTSD. The Board finds that the Veteran is entitled to an initial rating of 100 percent for his PTSD for the entire period on appeal. In this regard, the Veteran’s PTSD has been manifested by total social and occupational impairment for the entire period on appeal. The Veteran has shown to have significant symptoms of social isolation, irritability, lack of energy, decreased motivation, and impaired impulse control. The Veteran has not worked since 2008 as a result of his PTSD and does not appear to have significant social interaction outside the home. As such, the Board finds that the Veteran’s symptoms more closely approximate those contemplated by a 100 percent rating for the entire period on appeal. Therefore, an initial rating of 100 percent is warranted. 38 C.F.R. § § 4.130, Diagnostic Code 9411 (2019). The Board acknowledges that the results of the VA examination and the symptoms described in the treatment records do not indicate that the Veteran has experienced all of the symptoms associated with a 100 percent rating for PTSD. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but 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). Thus, the Board’s finding that there total social and occupational impairment is sufficient to warrant a 100 percent rating for the entire period on appeal even though all the specific symptoms listed for a 100 percent rating are not manifested. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to an initial rating of 100 percent for PTSD for the entire period on appeal warranted. 38 U.S.C. § § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU As stated previously, the Veteran has been awarded a rating of 100 percent for his PTSD for the entire period on appeal. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Generally, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or a combination of disabilities pursuant to the rating schedule, there is no need, and no authority to otherwise rate that Veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent rating does not always render the issue of TDIU moot. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court determined that a separate TDIU rating predicated on one disability may be awarded if that disability is not ratable at the schedular 100 percent level. However, a separate TDIU rating cannot be awarded based on one service-connected disability if the Veteran is already receiving a 100 percent schedular rating for that disorder. Buie v. Shinseki, 24 Vet. App. 242 (2010). In this case, the Veteran has been awarded a 100 percent rating for PTSD, effective November 19, 2010. The Veteran has reported that the only disability that impacts his ability to work is his PTSD. He is not service-connected for any other disability that alone, without consideration of his PTSD, prevents him from obtaining and maintaining gainful employment. Therefore, the findings in 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 PTSD from that date. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, 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.