Citation Nr: 21021902 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-40 756 DATE: April 14, 2021 ORDER Entitlement to an initial disability rating of 100 percent for service-connected Post Traumatic Stress Disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to June 1, 2015 is dismissed. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, the severity, frequency, and duration of the Veteran’s PTSD symptoms more nearly approximated total occupational and social impairment throughout the entire period on appeal. 2. As a 100 percent disability rating for PTSD has been awarded for the entire appeal period, the issue of entitlement to a TDIU during this period is rendered moot. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 100 percent for the Veteran’s service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The question of whether the Veteran is entitled to a TDIU is rendered moot by the award of a 100 percent disability rating for PTSD for the entire appeal period, leaving no question of law or fact to decide regarding the TDIU issue during this appeal period. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.340, 3.341, 4.14, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1970 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2011 and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing in his January 2017 substantive appeal (VA Form 9). However, in correspondence dated March 2020, the Veteran requested that his hearing request be withdrawn. As such, his hearing request is considered withdrawn. 38 C.F.R. § 20.704 (e). This matter was previously before the Board in November 2020, at which time it was remanded for a further development. A review of the record reveals that there has been substantial compliance with the Board’s prior remand directives as to the issues decided below. See Stegall v. West, 11 Vet. App. 265 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). 1. Entitlement to an initial disability rating of 100 percent for PTSD The Veteran was initially awarded service connection for PTSD at a 10 percent disability rating by way of a May 2011 rating decision, effective November 2, 2009. The rating was subsequently increased to 50 percent prior to June 1, 2015 and 70 percent thereafter by way of a September 2015 rating decision. Under the General Rating Formula For Mental Disorders, a 50 percent rating is warranted when there is 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 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 is warranted where 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; 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 or place; memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. The Veteran submitted a letter, dated April 2009, from his private psychologist, who stated the Veteran was referred by his employer due to behavioral concerns as he was exhibiting increased agitation. The psychologist recommended the Veteran be assessed for medication for his moderate symptoms of PTSD. At the February 2010 VA examination, the examiner found there were no effects of symptoms of PTSD on social and occupational functioning as PTSD could not be documented. The Veteran did not have impairment of thought process or communication. The Veteran was afforded another VA examination in March 2011. The examiner noted the Veteran has been manifesting symptoms of intrusive recollections of events, bad dreams, hyperarousal symptomatology, distrust for others, feeling depressed and avoidance of the stimuli associated with trauma. He stated the frequency of PTSD symptoms were daily, the severity has been moderate, and the duration has been constant. The Veteran held at least seven jobs since service and experienced job disruptions due to his mood. The examiner stated although not precluded from working due to PTSD, the effects of symptoms of PTSD on employment functioning have been moderately severe. The Veteran denied suicidal ideation and psychosis and maintained good personal hygiene. Speech was spontaneous, with normal rate and tone. There were no hallucinations, delusions, obsession compulsions or phobias. His mood was moderately anxious and depressed and moderately irritable. He was oriented to person, place, time and purpose and there were no deficiencies of cognition or memory. The Veteran was afforded a VA examination in June 2015. The examiner noted that his condition had deteriorated since his 2011 VA examination. The examiner found occupational and social impairment with deficiencies in most areas. The Veteran reported he was laid off in December 2014 and had been unemployed since but does not plan to look for more work. The Veteran reported he changed jobs to driving a delivery truck because he had serious problems getting along with other people. The Veteran was also having difficulties with his current wife and they were discussing separation. He had very few other social contacts other than his wife and he had little to no contact with his children. He endorsed symptoms of impaired judgment, abstract thinking, gross impairment in thought processes, disturbances of motivation or mood, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships. The examiner stated that the Veteran’s condition had clearly become more dire since his last evaluation, when he was service connected for PTSD at 10 percent disabling. He noted the Veteran was significantly impaired and his condition was deteriorating over time. The Veteran had a tendency to minimize his own distress. Since the previous examination, there were no suicide attempts and the Veteran was receiving medication and counseling. It was also noted the Veteran was in a car accident in 2013, which may have exacerbated his PTSD symptoms. The Veteran also suffered from alcohol abuse, which had a negative impact on his relationship, mood and energy. The examiner did not find memory loss, panic attacks, suicidal ideation, hallucinations or neglect of personal appearance. In lieu of a Board hearing, the Veteran submitted a statement regarding his PTSD symptoms in July 2020. He noted that he had been unable to get along with most people and was involved in many heated arguments with neighbors almost daily since 2009. He had a difficult time getting along with his children and from 2009 to 2015, he had numerous arguments with them that resulted in a loss of relationship. The Veteran also stated he had thoughts of suicide during 2009 to 2015 but refrained from telling doctors because he feared being locked up and institutionalized. He admitted to having suicidal thoughts a couple times a month that would linger for 2 or 3 days. During the relevant time period, the Veteran stated he longer engaged in activities that he once enjoyed, including playing billiards or hanging out at a bar. He also stated he had crying spells almost daily at night, which caused him to lose sleep resulting him being easily irritable. The Veteran also submitted an independent medical examination dated June 17, 2020 from a private doctor for an assessment of PTSD symptoms for the period between November 2009 to June 2015. The examiner found the Veteran had experienced symptoms including memory loss for names, deficiencies in family relations, persistent irrational fears, speech intermittently illogical, obscure or irrelevant, persistent danger of hurting others, deficiencies in work, gross impairment in thought processes, depression affecting ability to function independently, neglect of personal hygiene, intermittent inability to perform activities of daily living, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of traumatic experience, grossly inappropriate behavior, disorientation to time or place, unprovoked irritability, inability to establish effective relationships, and deficiencies in judgment. The examiner stated that the Veteran’s impairments caused him to be absent from work more than three times a month and that his prognosis was extremely poor. For the period since June 2015, the June 2020 independent medical examiner noted that the Veteran manifested symptoms such as poor hygiene, confusion, illogical and incoherent verbalizations, poor recent memory, impaired attention, poor judgment and insight, significant depression, low activity and social isolation. The examiner noted he had intrusive thoughts, speech incoherence, irritability and mood disorder, which made it unlikely that he would be able to maintain concentration for more than 30 percent of an 8-hour day and would likely miss 4 or 5 days of work each month. The examiner found total impairment in social and occupational functioning, as he was not able to interact socially in an effective manner. He concluded that the Veteran’s PTSD had been totally disabling since November 2009. Further, VA treatment records show the Veteran was hospitalized several times from 2015 to 2019 due to his alcohol use, to include for withdrawal symptoms. Resolving all reasonable doubt in favor of the Veteran, the Board finds that an initial 100 percent rating is warranted for the service-connected PTSD. Indeed, the record reflects that the Veteran reported multiple job disruptions due to his psychological symptomatology, as well as significant relationship difficulties and a persistent inability to get along with others. Multiple examination reports documented findings of gross impairment in thought processes throughout the appeal period. Additionally, the June 2015 VA examiner concluded that the Veteran was significantly impaired and that his psychological condition was becoming more dire. Notably, the June 2020 independent examination report reflects that the Veteran’s psychological symptomatology, since November 2009, included grossly inappropriate behavior, persistent danger of hurting others, intermittent inability to perform activities of daily living, neglect of personal appearance and hygiene, disorientation to time or place, as well as memory loss for names of close relatives, own occupation, or own name. The private examiner noted that the Veteran had experienced these symptoms throughout the entire appeal period and concluded that the Veteran’s PTSD had been totally disabling since November 2009. Based on the above analysis, and affording the Veteran the benefit of the doubt, the Board determines that from November 2, 2009, the date of service connection, the Veteran’s PTSD more nearly approximates a 100 percent disability rating. The Veteran’s statements, both the current and retrospective opinions provided in the June 2020 independent medical examination report, and the June 2015 VA examination report, lead the Board to conclude that it is at least as likely as not that the Veteran’s PTSD more nearly approximates total occupational and social impairment since November 2, 2009. Entitlement to a TDIU due to service-connected disabilities prior to June 1, 2015 A TDIU may be assigned “where the schedular rating is less than total” and the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. In this case, the Board is awarding an initial 100 percent disability rating for PTSD. Hence, there remains no time during the claim period where the schedular rating is “less than total,” as required for a TDIU. See 38 C.F.R. § 4.16 (a). The Board is cognizant of the fact that the receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU because a TDIU rating based on a single service-connected disability may still form the basis for assignment of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C. § 1114 (s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a “total” rating. When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley, 22 Vet. App. at 280). A veteran with a 100 percent schedular disability rating for a single service-connected disability could also obtain a TDIU on a single separate disability (though not on multiple service-connected disabilities), in order to meet the SMC requirements (100 percent rating plus 60 percent rating). A TDIU could meet the SMC requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a “total” (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for SMC. See Buie at 249-50. In this case, however, the Veteran’s only additional service-connected disability is tinnitus, which is rated 10 percent disabling. As such, he does not meet the additional separate 60 percent rating requirement for SMC. For this reason, the issue of entitlement to a TDIU during the claim period is now rendered moot, leaving no question of law or fact to decide regarding the TDIU issue during this period. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. In consideration thereof, the Board finds that the issue of entitlement to a TDIU must be dismissed as moot. Erin Trojanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.