Citation Nr: 21021630 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-42 863 DATE: April 13, 2021 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) prior to September 22, 2020 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is dismissed. FINDINGS OF FACT 1. Throughout the period on appeal, including prior to September 22, 2020, the Veteran’s PTSD symptoms have most closely approximated total social and occupational impairment. 2. Throughout the appeal period, the Veteran has been in receipt of a total schedular rating for his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for a 100 percent for PTSD prior to September 22, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The appeal for entitlement to a TDIU has been rendered moot by the grant of a total schedular rating for the service-connected PTSD throughout the entirety of the appeal period. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION This matter originally came before the Board of Veterans Appeals (Board) on appeal from an October 2010 rating decision by a Department of Veterans’ Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a November 2017 hearing. In a May 2018 decision, the Board denied entitlement to a rating in excess of 50 percent for PTSD. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 order granting a Joint Motion for Remand (JMR), the Court vacated the Board’s May 2018 decision and remanded the claim to the Board for additional development. In September 2020, the Board remanded the Veteran’s increased rating claim for further development. In an October 2020 rating decision, the RO granted a 100 percent rating for PTSD effective September 22, 2020. Therefore, the issue of a rating in excess of 50 percent prior to September 22, 2020 remains on appeal. 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder prior to September 22, 2020 The Veteran contends he is entitled to a rating in excess of 50 percent for his PTSD. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. The Board concludes that throughout the period on appeal the Veteran’s PTSD did more nearly approximate the level of impairment required for a disability rating of 100 percent. In August 2020, the Veteran underwent a private mental health examination. The examiner opined that the Veteran’s PTSD symptoms have caused him complete disability since 1999. The Veteran reported a worsening of his symptoms since he left service, with his symptoms finally becoming so overwhelming he sought treatment around 2006. The Veteran reported frequent crying spells, anxiety attacks, nightmares, dissociative episodes, social isolation, irritability, poor focus and concentration, intrusive memories, insomnia, thoughts of violence and angry outbursts, panic attacks, and hyperarousal. He also reported intermittent suicidal ideation. When employed, the Veteran reported he was unable to engage in reasonable interpersonal relationships and threatened violence on others on the job site. The Veteran recounted difficulties managing emotions in public and becoming volatile at the slightest provocation, imposing himself in a threatening manner on others. He also reported difficulty with interpersonal relationships at home and behaving in a way without threatening or destructive behavior. In September 2020, the Veteran underwent a VA examination. The examiner noted his findings were generally consistent with those found on the private psychiatric examination, agreeing that the Veteran’s PTSD causes total occupational and social impairment. The Veteran’s VA treatment records reflect that in early 2007 he reported his PTSD had worsened with the Iraq conflict. He endorsed sleep disturbance, frequent nightmares, infrequent flashbacks, intrusive memories, hyper startle response, hypervigilance, isolation, poor concentration, depression, irritability, and generalized anxiety with excessive worry. At a September 2008 examination in connection with a claim for Social Security Administration disability benefits, the Veteran reported that when he was working, he had problems getting along with people, with his job performance, and getting to work on time. He noted that his wife prompts him to bathe. The examiner opined that the Veteran’s PTSD causes moderate limitations in activities of daily living and severe limitations in social interactions, interest, and concentration. The examiner opined that the Veteran’s ability to perform in an ordinary workplace setting is likely to be poor but may be fair if reasonable accommodations are made for him. In late 2011 the Veteran reported his depressive symptoms had again worsened over the past year. He denied suicidal ideation but reported intermittent feelings of whether it is worth it. He reported frequent crying spells, sleep and appetite disturbance, isolation, anhedonia, difficulty with concentration, and decreased activity and interest. He was noted to have psychomotor slowing. In March 2012 he reported a worsening of seeing shadows out of the corner of his eye. Subsequent treatment records reflect reports of similar symptomatology. At his November 2017 Board hearing, the Veteran reported he doesn’t get along with his wife, a sentiment reflected throughout his VA treatment records. He reported that hurting himself or others is always on his mind, just sometimes he dwells on it more than others. He reported little interaction with his family. He reported he has trouble remembering what he needs to do or has already done and then gets upset and throws things. He reported getting angry easily and said he wanted to do things but sometimes just can’t bring it together. He noted he also sometimes has trouble remembering names, even if his children and grandchildren. The Board acknowledges that VA examiners in February 2010, August 2012, and March 2017 did not opine that the Veteran was totally occupationally and socially disabled due to his PTSD. However, the Board has considered those reports, conducted on a one-time basis, within the greater context of all of the Veteran’s medical records and lay testimony. The Board finds that overall giving the Veteran the benefit of the doubt, the evidence supports that the Veteran’s PTSD symptoms most nearly approximate total social and occupational impairment throughout the period on appeal. Although not all examinations reflect a similar nature and severity of his symptoms, the Board puts significant probative weight on the opinion of the private examiner and the Veteran’s own lay statements that his condition has been of a level throughout the period on appeal that warrants a 100 percent rating. Thus, the appeal is granted. 2. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. However, the claim of entitlement to a total disability based on individual unemployability has been rendered moot by the award of a 100 percent schedular evaluation for PTSD throughout the period on appeal. See Bradley v. Peake, 22 Vet. App. 280 (2008). 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. at 294. 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 this case, the Veteran’s only other service-connected disabilities are tinnitus with a 10 percent disability rating and left ear hearing loss with a noncompensable rating. As there is no indication that a TDIU is warranted based solely on tinnitus and hearing loss, the grant of a 100 percent rating for the Veteran’s service-connected PTSD renders the issue of entitlement to TDIU moot. Bradley, 22 Vet. App. at 293; Buie, 24 Vet. App. 242. As there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal of the claim for TDIU is moot and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen 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.