Citation Nr: 21013854 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-17 510 DATE: March 10, 2021 ORDER From May 12, 2011, entitlement to an initial rating of 100 percent for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) is granted, effective from August 27, 2014, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) as a result of a 100 percent rating for service-connected PTSD and the assignment of SMC is dismissed as moot. FINDINGS OF FACT 1. Throughout the entirety of the appeal period, the Veteran’s service-connected PTSD is characterized by total occupational and social impairment. 2. The Veteran now has a single disability rated as 100 percent disabling and additional service-connected disability rated as 60 percent or more disabling, effective from August 27, 2014. 3. The Veteran has a 100 percent disability rating for PTSD throughout the claim period together with the assignment of SMC, rendering the issue of entitlement to a TDIU moot. CONCLUSIONS OF LAW 1. From May 12, 2011, the criteria for entitlement to an initial rating of 100 percent for posttraumatic stress disorder (PTSD) are met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§3.159, 4.1–4.14, 4.130, Diagnostic Code 9411. 2. The criteria for SMC pursuant to 38 U.S.C. § 1114(s) are met effective from August 27, 2014. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. 3. The Veteran's 100 percent disability rating for PTSD and assignment of SMC renders moot the appeal for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.29, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1969 to April 1971. The Veteran served in the Republic of Vietnam from May 1970 to April 1971. He received the Combat Infantryman Badge and Bronze Star. This matter comes to the Board of Veterans’ Appeals (Board) on an appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). The Veteran testified in a hearing before the undersigned Veterans Law Judge in January 2018. A transcript of the hearing has been associated with the Veteran's claims file. This issue was previously before the Board in March 2018 at which time the Board granted entitlement to a 70 percent initial rating for PTSD from May 12, 2011, and remanded the issue of entitlement to an initial rating in excess of 70 percent. This matter was again before the Board in November 2019 at which time the Board denied entitlement to an initial rating in excess of 70 percent for PTSD. In October 2020, the parties submitted a Joint Motion for Remand (JMR) to the Court of Appeals for Veterans Claims (Court). The Court granted the JMR, vacated the November 2019 Board decision and remanded. 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) Increased rating 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. 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. 38 C.F.R. § 4.1. 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. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 also contemplates the effect of those symptoms on the Veteran's work and social situation. 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. 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. Analysis In a September 2011 rating decision, service connection was granted for PTSD with an initial disability rating of 30 percent effective May 12, 2011, the date of claim. The Veteran appealed the decision, asserting entitlement to an initial rating in excess of 30 percent for service-connected PTSD. A December 2018 rating decision implemented the March 2018 Board decision, increasing the initial rating for the Veteran’s PTSD to 70 percent effective May 12, 2011. Following the completion of the development requested in its March 2018 remand, the Board then denied entitlement to a rating in excess of 70 percent in November 2019. Thereafter, in the October 2020 JMR, the parties agreed that vacatur and remand were warranted because the Board erred when it failed to provide an adequate statement of reasons or bases for its decision. Specifically, the parties agreed that the Board failed to adequately address the Veteran’s suicidal and homicidal ideations, and whether such symptomatology equates to total occupational and social impairment, warranting a rating in excess of 70 percent. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Further, the parties agreed that the Board erred by not addressing the Veteran’s entitlement to a total disability rating based on unemployability (TDIU). The Court granted the JMR in October 2020, vacated the Board’s November 2019 decision, and remanded with direction for the Board to address and analyze evidence showing that the Veteran endorsed both suicidal and homicidal ideation during the appeal period and determine whether his PTSD symptoms warrant an initial evaluation in excess of 70 percent for PTSD. The Board also directed the Board to address the issue of entitlement to a TDIU. Analysis Pursuant to the Court’s remand, the Board will summarize the evidence of record, focusing on evidence relevant to the issue of whether the evidence of suicidal and homicidal ideation warrants a rating in excess of 70 percent. Service treatment records indicate that the Veteran was diagnosed with combat exhaustion during service in October 1970 in the Republic of Vietnam, where he served from May 1970 to April 1971. He reported complaints of forgetting things, talking in his sleep and fearing he was “losing his mind.” The Board notes that the Veteran first applied for service connection for psychological problems in July 2001, which application was denied without affording the Veteran a VA examination despite the diagnosis of “combat exhaustion” during service. The Veteran did not appeal that decision and it became final. A December 2009 primary care note checklist included “suicidal thoughts” but it is unclear whether the Veteran reported same. His suicide risk screen was negative. The examiner noted recent bad dreams and recommended mental health consult for possible PTSD. A December 2010 patient note using the same checklist was additionally negative for suicidal thoughts. A March 2011 PTSD evaluation indicated poor frustration tolerance, past passive suicidal thoughts, anger (uncontrolled at times), and “occasional rage related impulses.” The Veteran was afforded a VA examination in August 2011. The examiner noted flashbacks, intrusive thoughts about “bombing things,” hypervigilance, poor sleep, and poor concentration. The Veteran reported visual hallucinations. The Veteran reported increased marital conflict to the extent that he committed domestic violence. A May 2012 mental health group counseling note indicated that the Veteran shared his own past suicidal thoughts and reported that his daughter was so concerned a few years ago that she removed the guns from his home. An April 2014 outpatient note indicated that the Veteran stated, "I gave all of my guns to my daughter a while back because I was afraid of what I might do." A May 2014 evaluation note reported a history of suicidal and homicidal ideation. The Veteran reported worsening symptoms. The Veteran reported that he once held a loaded gun and threatened to shoot his wife and then himself. He denied current suicidal or homicidal ideation. He reported a strong faith in God, and his religion is a protective factor against suicide. He stated, "It's the main reason why i haven't went through with anything." The Veteran’s wife of 43 years (now 50 years) submitted a statement in July 2014 stating that “On many occasions over the years, [he] has threatened to kill us both. I have been so scared by these threats-I did not know what to do!” She stated that after the Veteran retired, “with more time to think about his experiences in Vietnam, I became more worried and scared of what might happen.” They removed all guns from their home. She described continuing outbursts of anger. A February 2016 initial intake/evaluation note noted a history of suicidal and homicidal ideation. An April 2016 primary care mental health follow-up note indicated “some suicidal and homicidal thoughts and behaviors.” During the January 2018 hearing, the Veteran reported that he gets very violent. “I lose my temper really fast, and I take it out on my wife and anything else, anybody else, that’s around.” He stated that his daughter “took all my weapons” out of the house “to keep me from harming myself and my wife.” An April 2018 social work note indicated the Veteran reported recent irritability and depression, as a result of which he had an outburst in the presence of his wife which “got to the point where he threw things in their home.” He denied that his wife was harmed. An April 2019 mental health treatment plan noted difficulty controlling anger. The Veteran’s most recent VA examination occurred in August 2019. He reported nightmares, flashbacks, daily intrusive thoughts, panic, anxiety, depression, rage/anger/violent behavior/domestic violence, sleep disturbance, visual hallucinations, social withdrawal, etc. He reported daily intrusive thoughts, rage, anger, violent behavior, and domestic violence. He stated that his PTSD strains his marriage because he “loses it sometimes and has to get away.” He reported violent behavior where he might try to rip a door off its hinges or “grab his wife and shake her.” His social life is limited and he stated, “I like to be by myself a lot.” He retired in 2011 because he could no longer concentrate at work and was having more frequent and intense nightmares. He had been a state tax auditor for 20 years. The Veteran is prescribed medication but still has nightmares, kicks his wife in his sleep, and awakens with respiratory issues, thinking about the tunnels he worked in during Vietnam. He has participated in the Booster Group for veterans once a month since 2011. He finds it very helpful. He also attends a veteran's group once a week where the focus is preventing suicide. The Veteran’s current symptoms include: “difficulty breathing, kicking in his sleep, nightmares where he sees himself in the middle of Vietnam with leeches all over him, hypervigilance where he is constantly looking around, and always trying to sit in a corner." He has flashbacks "every day" triggered by people doing "erratic or slow driving," and threatening his family. He has daily intrusive thoughts. He is still having severe symptoms of PTSD that include violent behavior, suicidal ideation, visual hallucinations, and episodes of severe sleep disturbance. He reports that some of his symptoms have increased in frequency. He reported having more trouble dealing with stress. The examiner found that there is a worsening of the veteran’s symptoms however no change to the service-connected diagnosis and no additional diagnoses have been rendered. The examiner noted that the Veteran’s most recent suicidal ideation was two weeks prior to the examination when he was accused of threatening someone, which he did not recollect. The suicidal thought was “I should do away from myself driving in a vehicle.” He expressed no intent on action on the thought. The examiner indicated that he did not believe the Veteran should be considered a current imminent or increased risk. Among other criteria, the examiner noted persistent negative emotional state (e.g. fear, horror, anger, guilt, or shame), impaired impulse control, such as unprovoked irritability with periods of violence, suicidal ideation, grossly inappropriate behavior, irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, and reckless or self-destructive behavior. The examiner found that his symptoms indicate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. Before addressing the appropriate rating for the Veteran’s PTSD symptoms, the Board recognizes that for many years, the Veteran has actively sought help for his PTSD symptoms, by seeking medical and psychological treatment, and by participating in support groups, and sessions with the minister of his church. Nonetheless, as discussed below, the Board finds that certain manifestations and effects of the Veteran’s PTSD symptoms obviate occupational or social functioning. The evidence establishes “persistent danger of hurting self or others,” “grossly inappropriate behavior,” and “gross impairment in thought processes or communication,” symptoms that are indicative of a 100 percent disability rating. 38 C.F.R. § 4.130. It is difficult to overstate the effect of these symptoms in the workplace, or in society. The issue remanded by the Court may be stated as whether the evidence of record endorsing the Veteran’s suicidal and homicidal ideation and the effects thereof more closely approximate total occupational and social impairment. Initially, the Board finds the opinion provided by the 2019 examiner finding otherwise is inadequate for similar reasons that the Court found the Board’s prior decision inadequate; it failed to adequately address the Veteran’s suicidal and homicidal ideation. Under the circumstances of this case, the criteria noted by the examiner, based on the Veteran’s symptoms, more closely approximate total occupational and social impairment. The evidence demonstrates symptoms of both passive and active suicidal ideation and persistent uncontrolled anger. In the August 2019 VA examination the Veteran reported daily intrusive thoughts, rage, anger, violent behavior, and domestic violence. He stated that his PTSD strains his marriage because he “loses it sometimes and has to get away.” He reported violent behavior where he might try to rip a door off its hinges or “grab his wife and shake her.” The examiner noted that the Veteran’s most recent suicidal ideation was two weeks prior to the examination when he was accused of threatening someone, which he did not recollect. His suicidal thought was “I should do away from myself driving in a vehicle.” The examiner indicated that the Veteran expressed no intent to act on the ideation and the examiner did not believe the Veteran should be considered a current imminent or increased risk. However, the Board must reject this premise in its analysis as it runs directly counter to the Court’s holding in Bankhead v. Shulkin, 29 Vet. App. 10 (2017). In Bankhead, the Court found that the Board had “erroneously grafted risk of self-harm onto the symptom of suicidal ideation.” The Court explained that both passive and active suicidal ideation are “comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death.” The Court found that the Board’s measure of the severity of “suicidal ideation” in terms of the risk of self-harm conflated that symptom with the 100 percent rating symptom, “persistent danger of hurting self.” In doing so, the Court recognized that to the extent that risk of self-harm is mentioned in § 4.130, it is referenced in the criteria for a 100 percent evaluation as “persistent danger of hurting self,” deemed to be typically associated with total occupational and social impairment. The Court held that suicidal ideation should not be conflated with risk of self-harm; risk of harm is expressed in the criteria for a 100 percent rating as “persistent danger of hurting oneself or others.” The Veteran’s thoughts have been, and continue to be, verbalized as violent threats against himself and others, and his persistent threats establish persistent danger. Unfortunately, the evidence also shows that the Veteran acted in furtherance of suicidal and homicidal ideation at least one time, holding a loaded gun and threatening to kill his wife and then himself. There were also several references to incidents of “domestic violence” in the record. Where passive or active suicidal ideation is encompassed by the criteria of a 70 percent rating, threats and actions taken in furtherance of such ideation meet the criteria not only of “persistent danger of hurting self or others, but also of “grossly inappropriate behavior,” and “gross impairment in thought processes or communication,” which criteria are encompassed by a 100 percent rating. After reviewing the evidence, the Board finds that throughout the entirety of the appeal period, the severity, frequency, and duration Veteran’s symptoms most closely approximate total occupational and social impairment. 2. Entitlement to a total disability rating for individual unemployability (TDIU) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341; 38 C.F.R. § 4.16(a). The issue of entitlement to TDIU is reasonably raised when a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Veteran is seeking the highest rating possible for PTSD and the record contains evidence, including the hearing testimony and the August 2019 VA examination, indicating that he retired because of his PTSD symptoms, including that he could no longer concentrate or remember the statutes that are required in order to perform his job as a tax auditor. The record further indicates that the Veteran last worked in January 2011. 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). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or 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) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, the Board acknowledges that a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). For example, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. Bradley v. Peake, 22 Vet. App. 280 (2008). Here, however, aside from being service-connected for PTSD with a 100 percent evaluation, the Veteran is also service connected for the following disabilities with compensable ratings: Parkinson’s disease, 30 percent, since August 27, 2014; stooped posture, 20 percent, since October 31, 2019; bilateral sensorineural hearing loss, 20 percent, since July 17, 2012; left upper extremity tremors, muscle rigidity, and bradykinesia, 20 percent, since October 31, 2019; left lower extremity tremors, muscle rigidity, and bradykinesia, 20 percent, since October 31, 2019; right lower extremity tremors, muscle rigidity, and bradykinesia, 20 percent, since October 31, 2019; instability-left knee, 10 percent, since May 12, 2011; left knee strain, 10 percent, since May 12, 2011; impaired balance, 10 percent, since October 31, 2019; and tinnitus, 10 percent, since July 12, 2017. Thus, the Board may additionally grant special monthly compensation pursuant to 38 U.S.C. § 1114(s) from August 27, 2014, since the Veteran has a service-connected disability rated as total and has additional service-connected disabilities that are independently ratable at 60 percent or more effective from that date. Having granted such benefits and with the 100 percent schedular rating for PTSD, the TDIU claim is now dismissed as moot. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.