Citation Nr: 21014227 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-10 858 DATE: March 11, 2021 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) is granted for the entire appeal period, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT The Veteran’s service-connected PTSD symptoms and overall impairment have more nearly approximated total occupational and social impairment. CONCLUSION OF LAW The criteria for a 100 percent rating for PTSD have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to November 1971. This case comes to the Board of Veterans’ Appeals (Board) on appeal from November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which continued the 70 percent rating for PTSD. The Veteran disagreed with the RO’s determination and a Statement of the Case was issued in January 2017 addressing the matter. The Veteran timely appealed. In March 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). Although a transcript of that hearing has not yet been made, one is not necessary in this case as the benefit sought is being granted in full. Higher Ratings Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C. § § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support.  38 C.F.R. § § 4.10. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § § 4.3. Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before, he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or staged ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Here, for the reasons below, a uniform 100 percent rating is warranted. PTSD The criteria for rating PTSD disorder is contained in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned when there is objective evidence demonstrating 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, or 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 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 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. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held “that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.” Id. at 117. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The Veteran contends that an increased rating for PTSD, currently evaluated as 70 percent is warranted. For the following reasons, the Board finds that the Veteran’s PTSD is manifested by symptoms more nearly approximating total occupational and social impairment. In November 2016, the Veteran underwent a VA medical examination. He demonstrated symptoms of depression, anxiety, chronic sleep impairment, and mild memory loss. The Veteran reported being angry all of the time and self-isolation. The Veteran’s wife reported that he lashes out too, usually at her, only verbally. The VA examiner concluded that the Veteran’s PTSD symptoms were equivalent to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In a December 2018 letter, T.P. reported that the Veteran resigned from his position as of the date of the letter, due to his PTSD symptoms, as he found it was necessary to do so. Additionally, T.P. stated that the Veteran’s loyalty and dedication to his work had been hampered by his struggle with these symptoms, and his colleagues wishes him the best in the future. A January 2019 VA examination report indicate the Veteran exhibited symptoms of depression, anxiety, and chronic sleep impairment. The Veteran reported frequent verbal altercations with wife, slamming doors and throwing things in anger. The examiner concluded that the Veteran’s PTSD symptoms were equivalent to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. An October 2019 private treatment record shows the Veteran exhibited symptoms of depression, anxiety, suicidal ideation, anger, diminished concentration, and self-isolation. A June 2020 VA examination report indicate the Veteran exhibited symptoms of depression, anxiety, suspiciousness, panic attacks more than once a week, and chronic sleep impairment. He exhibited mild memory loss, flattened affect, disturbances of motivation and mood, and obsessional rituals which interfere with routine activities. The Veteran had impaired impulse control, such as unprovoked irritability with periods of violence. He exhibited difficulty in establishing and maintaining effective work and social relationships. He had difficulty adapting to stressful circumstances, including a work or worklike setting. There was neglect of personal appearance and hygiene. The examiner concluded that the Veteran’s PTSD symptoms were equivalent to occupational and social impairment with deficiencies in most areas. At his March 2021 Board hearing, the Veteran testified that he forgets names of daughters, days, and times. He reported that he becomes over the top angry at times, for example, when a dog barks a certain way, a door did not close correctly, or plates are not stacked the correct way. The Veteran indicated hearing voices at night sometimes, with no visual hallucinations. He noted only showering when his wife tells him. He further noted that his wife worries about leaving him alone and must modify her activities because of that. Additionally, his PTSD caused him to miss work and do it poorly, and he argued with employees. The above evidence of record indicates that for the entire period on appeal, the Veteran’s PTSD was manifested by symptoms and impairment that more nearly approximate the total occupational and social impairment required for a 100 percent rating. As set forth above, the Veteran has demonstrated inappropriate behavior, suicidal ideation, and hearing voices. He consistently exhibited depression, anxiety, self-isolation, and outbursts of anger. Additionally, the Veteran had an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Moreover, in the December 2018 letter, the Veteran’s colleague T.P. reported that the Veteran resigned from his position due to his PTSD symptoms, as is loyalty and dedication to his work had been hampered by his struggle with those symptoms. There is no heightened requirement for a 100 percent rating under the general rating formula for mental disorders; the standard of 38 C.F.R. § 4.7, that the symptoms and impairment more nearly approximate the total occupational and social impairment for this rating, applies. See Del Valle v. Gober, No. 96-1116, 1997 U.S. Vet. App. LEXIS 960 (mem dec) (Oct. 1, 1997) (citing Giusti-Bravo v. United States Veterans Administration, 853 F. Supp. 34 (D.P.R. 1993) (discussing VA’s San Juan Memorandum 82-3 which incorrectly advised rating board specialists to use heightened requirements for veterans seeking disabled ratings for mental disorders). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Based on the evidence of record, including the medical records and the Veteran’s competent and credible statements, the Board finds that for the entire period on appeal, the Veteran’s symptoms and impairment more nearly approximate total occupational and social impairment required for a 100 percent rating. A 100 percent rating is therefore warranted for PTSD. 38 C.F.R. § 4.130, DC 9411. Although the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is raised as part and parcel of any rating claim that reflects unemployability due to the service connected disability, TDIU is moot if it cannot assist the Veteran in qualifying for special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s)(1). See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). As the Veteran’s only other service connected disabilities are tinnitus and shell fragment wound residuals, rated 10 and 0 percent, respectively, and there is no evidence or argument that either one renders him unemployable, TDIU cannot assist in qualifying for SMC(s) and the issue is therefore moot. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel Walker, 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.