Citation Nr: 21012966 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 190412-8954 DATE: March 8, 2021 ORDER Entitlement to an initial disability rating of 100 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to an earlier effective date of July 6, 2010 for a grant of Dependents’ Educational Assistance (DEA) benefits is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 7, 2019 is dismissed as moot. FINDINGS OF FACT 1. The evidence shows that the Veteran’s disability picture for PTSD most nearly approximated total social and occupational impairment for the period on appeal prior to February 7, 2019. 2. The Veteran has been assigned the maximum schedular disability rating of 10 percent for his service-connected tinnitus (his only other service-connected disability), and there are no remaining claims for service connection or increased ratings on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 100 percent for PTSD has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to an earlier effective date of July 6, 2010 for a grant of DEA benefits has been met. See 38 U.S.C. § 5110; 38 C.F.R. § 3.807, 21.3020, 21.3021. 3. The Veteran’s compensation for the claims on appeal is maximized, and the issue of entitlement to TDIU prior to February 7, 2019 is moot. See 38 U.S.C. § 1114; Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to December 1971. This appeal comes to the Board of Veterans’ Appeals (Board) from a February 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in the modernized review system. See 38 C.F.R. § 3.2400. The Board previously remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development While the appeal was pending with the AOJ on remand, the AOJ invited the Veteran to participate in the Rapid Appeals Modernization Program (RAMP), and the Veteran selected the Higher-Level Review option when he opted-in to the modernized review system by submitting a RAMP election form in November 2018. See 38 C.F.R. § 19.2(d). As noted in the February 2019 rating decision, the AOJ processed the RAMP opt-in as a supplemental claim in the modernized review system as it identified a duty to assist error that warranted additional evidentiary development. See 38 C.F.R. § 3.2501. In April 2019, the Board received the Veteran’s timely Notice of Disagreement with the February 2019 rating decision, and the Veteran elected to have the decision reviewed under the Direct Review by a Veterans Law Judge option. In December 2019, the Board denied the Veteran’s claims for an initial disability rating exceeding 50 percent for PTSD and effective dates for entitlement to TDIU and DEA benefits prior to February 7, 2019. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC), and the CAVC granted a Joint Motion for Partial Remand (JMPR) in October 2020 vacating the Board’s decision in part and remanding these matters to the Board for additional consideration of the pertinent law and facts in accordance with the JMPR. The JMPR found that the Board’s determination that “passive suicidal ideation” is “insufficient, in and of itself, to support a 70 percent evaluation” runs afoul of relevant caselaw. Therefore, the Board will review the evidence once more and reassess whether it supports a finding that the Veteran is entitled to increased disability ratings for his PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Accordingly, separate ratings may be assigned for separate periods of time based on the facts found, which is a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Mental disabilities are rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130. In pertinent part, the rating criteria are as follows: A 50 percent rating contemplates 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. A 70 percent rating contemplates 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 that 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. A 100 percent rating contemplates 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. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran’s disability rating for PTSD is currently staged at an initial disability rating of 50 percent and a higher rating of 100 percent effective February 7, 2019. VA staged the rating as of the date of a February 2019 VA examination, which contained findings consistent with the criteria for a 100 percent disability rating. For example, the examiner found that the Veteran exhibited grossly inappropriate behavior and had an intermittent inability for perform activities of daily living, including maintenance of minimum personal hygiene. The AOJ ultimately found the examiner’s assessment to be competent and credible evidence that the Veteran met the criteria for the 100 percent disability rating but did not include specific findings explaining why the Veteran did not meet the criteria prior to February 7, 2019. See February 2019 rating decision. The examiner’s opinion also does not provide a rationale in support of finding that the Veteran’s disability picture substantially worsened as of the examination date or at any specific point in time. The Veteran’s statements and his representative’s briefs in support of the claim indicate that the February 2019 examiner’s findings are representative of his disability picture during the entire period on appeal and requests the Board assign the Veteran an initial disability rating of 100 percent. See, e.g., October 2019 Appellant’s Brief (asserting that the evidence supports an initial disability rating of 100 percent for PTSD effective July 6, 2010). A review of the claims file shows that while the Veteran attended two VA examinations and a counseling session at Vet Center, the Veteran has at times underreported his symptoms and avoided seeking further counseling because of the stigma associated with mental illness. See July 2010 Progress Notes from Vet Center (noting that the Veteran reported he feels that he is not being a man by talking to someone). An earlier VA examination from February 2011 contains some milder findings, some more severe findings (e.g. suicidal ideation), and many similar findings to the February 2019 examination. While the February 2011 VA mental health examiner indicated that the Veteran’s PTSD symptoms at the time only resulted in occasional decrease in work efficiency and interfered with his life to a mild degree, the Board finds this conclusion is not consistent with the observations and findings in the rest of the report. For example, the examiner noted that the Veteran had suicidal ideation, anger problems with poor emotional control, nightmares which disrupt his sleep, poor outside relationships, few leisure activities, agitation, and has been arrested for aggression. The Board considered this evidence in the context of the subsequent statements from the Veteran received by VA with his August 2012 Notice of Disagreement and his September 2016 Appeal to Board of Veterans’ Appeals, which also detail reoccurring periods of isolation or conflict with others as a result of his PTSD symptoms. While there is some evidence of limited occupational and social activity during the period at issue (e.g. brief part time work and social interactions) prior to February 7, 2019, the Board observes that the evidence indicates this activity has been chronically interrupted by the threat of violent confrontation or grossly inappropriate behavior between the Veteran and others. See February 2019 VA mental health examination (noting the Veteran was unable to maintain past employment due to his explosiveness and violent behavior). Considering this evidence, the Board finds that the Veteran’s disability picture for PTSD prior to February 7, 2019 is not fully contemplated by a 50 percent or 70 percent disability rating. The Board finds the Veteran’s disability picture including the frequency, duration, and severity of relevant symptoms more nearly approximated the criteria for a 100 percent disability rating (e.g. persistent danger of hurting self or others, grossly inappropriate behavior, and an intermittent inability to perform activities of daily living) for the entire period at issue on appeal. Accordingly, the Board finds that the Veteran is entitled to an initial disability rating of 100 percent for PTSD, which also entitles the Veteran to DEA benefits effective July 6, 2010 (the date of service connection for PTSD). See 38 C.F.R. § 3.807, 21.3020, 21.3021. Therefore, the Veteran’s claims for increased disability ratings for PTSD and DEA benefits are granted in full. The Board notes that a grant of a 100 percent disability evaluation does not always render the issue of entitlement to TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, special monthly compensation SMC may be warranted under 38 U.S.C. § 1114(s) if a veteran has a 100 percent disability rating for a single disability, and VA finds that a TDIU is warranted based solely on a disability or disabilities other than the disability that is rated at 100 percent. See Bradley, supra (analyzing 38 U.S.C. § 1114(s)). In this case, the Veteran’s compensation for service-connected PTSD is rated at 100 percent for the entire period at issue, and the Board finds neither the Veteran nor the evidence of record has raised the issue entitlement to TDIU for tinnitus alone. The Veteran has been assigned the maximum schedular disability rating of 10 percent for tinnitus (his only other service-connected disability), and there are no remaining claims for service connection or increased ratings on appeal. Therefore, the Board finds the Veteran’s benefits have already been maximized in regard to the claims on appeal, and further evaluation of entitlement to TDIU is moot. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.