Citation Nr: 21015455 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-18 120 DATE: March 17, 2021 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is dismissed. FINDINGS OF FACT 1. The Veteran’s PTSD been shown to be productive of total occupational and social impairment. 2. The Veteran has a total rating for PTSD, and he has no other service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). 2. The claim for a TDIU rating is moot. 38 C.F.R. § 4.16 (a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to October 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded this issue for additional development. Increased Rating Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2020). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two 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 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his PTSD disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. Laws and Regulations The Veteran filed increased rating for his service-connected PTSD that was received by VA on March 21, 2013. The Veteran has a current 70 percent disability rating for his PTSD under Diagnostic Code 9411. The Board notes that psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula. See 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a 10 percent evaluation is warranted if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A rating of 30 percent is assigned when the Veteran exhibits occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires 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 affected 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned 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 or place; memory loss for names of close relatives, own occupation, or own name. Id. The evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase 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. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2020). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the “psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness.” Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). According to the DSM-IV, GAF scores ranging between 61 to 70 reflect some mild symptoms [e.g., depressed mood and mild insomnia] or some difficulty in social, occupational, or school functioning [e.g., occasional truancy, or theft within the household], but generally functioning pretty well, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect more moderate symptoms [e.g., flat affect and circumstantial speech, occasional panic attacks] or moderate difficulty in social, occupational, or school functioning [e.g., few friends, conflicts with peers or co- workers]. Scores ranging from 41 to 50 reflect serious symptoms [e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting] or any serious impairment in social, occupational or school functioning [e.g., no friends, unable to keep a job]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication [e.g., speech is at times illogical, obscure, or irrelevant] or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood [e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school]. VA has changed its regulations, and now requires use of DSM-5 effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014; and is not applicable to cases certified to the Board prior to that date. 79 Fed. Reg. 45093 (Aug. 4, 2014). As the Veteran’s case was certified to the Board after August 4, 2014, DSM-5 applies, and GAF scores are no longer used in evaluation of psychiatric disorder. Id. However, the examiner’s discussion of symptoms associated with any assigned score would still be useful in evaluation of psychiatric disabilities. Factual Background and Analysis The Veteran underwent a VA examination in May 2013. The examiner described the Veteran’s level of occupational and social impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking/ or mood. It was noted that the Veteran was divorced and lived with his son. He had not worked since 2009. The Veteran had depressed mood, anxiety, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships and persistent delusions or hallucinations. The Veteran was not capable of managing his own affairs as he relied on his son to take care of his bills and personal finances. On a May 2016 Disability Benefits Questionnaire (DBQ), a private physician described the Veteran’s level of occupational and social impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking/ or mood. The physician noted that the Veteran had no friends, got anxious and could not get along with others in social situations. He isolated from most people other than his family. The Veteran reported that he had been terminated from a few previous jobs for arguing with people. The examiner noted that the Veteran’s PTSD continuously impaired his ability to maintain consistent work activity uninterrupted to the present. The physician indicated that the Veteran’s symptoms continued to be more severe and completely disabled and precluded him from sustaining any forms of employability. Per the September 2018 Board remand instructions, the Veteran underwent a VA examination in July 2019. The examiner described the Veteran’s level of occupational and social impairment as total occupational and social impairment. The Veteran had depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The Veteran admitted to episodes of confusion when he was angered. He was currently living with his stepdaughter and had two episodes of confusion since living there. He reported that he did not have any friends nor did he want to have any friends. The Veteran notably last worked in 2011 on a part time basis for the United States Census but argued with his boss at that position. For a week in February 2019 he was hospitalized for a psychiatric admission after he had threatened to kill his son’s girlfriend. The Veteran had been reporting auditory and visual hallucinations and was diagnosed with PTSD, unspecified depressive disorder and possible schizophrenia. In a November 2020 correspondence, a private vocational counselor opined that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected PTSD. Following careful review of all the evidence of record, the Board finds that the severity of the Veteran’s PTSD disability more nearly approximates total occupational and social impairment, as contemplated by a 100 percent disability rating. See 38 C.F.R. §§ 4.7, 4.130. The Veteran’s generalized anxiety disorder with panic disorder without agoraphobia and major depression is manifested by symptoms including depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships, suicidal ideation and audio and visual hallucinations. Notably, the record shows that the Veteran has been unable to secure gainful employment since 2011 when he last worked on a part time basis but argued with his boss. Additionally, the November 2020 private vocational counselor opined that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected PTSD. Although the Veteran has reported some social contact as he now lives with his stepdaughter, the Board finds that overall, he has significant social impairment. In this regard, the Veteran reportedly has no friends and no interest in having friends while he also had a dispute with his son’s girlfriend that resulted in a psychiatric hospitalization for a week in February 2019. The Board also notes that the May 2013 VA examiner and May 2016 DBQ physician specifically described the Veteran’s symptoms as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking/ or mood, which fits squarely for the criteria for a 70 percent evaluation under the General Rating Formula. However, the most recent VA examiner in July 2019 specifically indicated that the Veteran had total social and occupational impairment which fits squarely with a 100 percent disability rating. In view of the above, the Board finds that the application of the benefit-of-the-doubt doctrine contemplated by 38 U.S.C. § 5107 (b) is appropriate in this case. The level of disability, when the benefit of the doubt is given to the Veteran, is approximately commensurate with the 100 percent rating under Diagnostic Code 9400 under current rating criteria. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9400. In summary, the Board believes that a 100 percent disability evaluation, effective March 21, 2013 contemplates the frequency, severity, and duration of his symptoms, while resolving all doubt in favor of the Veteran. Accordingly, his myriad of symptoms more nearly reflects the frequency, severity, and duration of symptoms ratable at the 100 percent disability evaluation. TDIU Laws and Regulations Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2020). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2020). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2020). Analysis 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). 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. See 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, 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. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, 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. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). In the case at hand, the Veteran is service-connected for a PTSD disability at a 100 percent evaluation and he has no other service-connected disabilities. Because no allegation of error of fact or law remains for appellate consideration, the Board has no jurisdiction to review the appeal for the issue of entitlement to a TDIU and it is dismissed. See 38 U.S.C. § 7105 (d) (5) (2012); 38 C.F.R. § 20.202 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.