Citation Nr: 21027655 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-36 196A DATE: May 6, 2021 ORDER Entitlement to a 100 percent disability evaluation for posttraumatic stress disorder (PTSD), from July 21, 2016, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed as moot. FINDING OF FACT From his date of claim for increase on July 21, 2016, the Veteran's psychiatric disability manifested in total occupational and social impairment. CONCLUSION OF LAW Effective July 21, 2016, the criteria for a disability rating of 100 percent for PTSD have been met, and entitlement to a TDIU is rendered moot. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.16, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Army from August 2003 to April 2004, and again from July 2010 to August 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, his mother, and his sister testified before the Board at a January 2021 virtual hearing. A transcript has been associated with the claims file. Although the Veteran requested that his appeal be withdrawn in April 2019, it is not clear that the withdrawal was done with a full understanding of the consequences of such action on the part of the claimant. Indeed, the Veteran's representative has specifically argued that the Veteran, at the time, was frequently in a manic state and had no understanding of what was being proposed. After considering the Veteran's medical history and, in particular, the severity of his condition leading up to the Veteran's April 2019 statement, the Board will resolve all doubt in the Veteran's favor and find that the appeal remains active. By way of background, the Board notes that the Veteran was originally granted entitlement to service connection for PTSD in July 2014 and assigned an initial 50 percent rating. Thereafter, the Veteran filed a claim for increase on July 21, 2016. The Veteran has been in receipt of a 50 percent rating from May 2013, and a 70 percent rating from March 2020in accordance with the increased rating granted in June 2020. The Board observes that, under 38 U.S.C. § 5110(b)(2), a veteran is entitled to an earlier effective date for an award of disability compensation if an increase in his disability occurred during the year before he filed his claim. Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010). In this matter, it is not ascertainable that an increase in the severity of the Veteran's mental disorder occurred in the year prior to July 21, 2016; as such, July 21, 2016 corresponds to the earliest date upon which the Veteran's increased rating may take effect. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides, in pertinent part, the following ratings for psychiatric disabilities: A 50 percent rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for 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 a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation under the general rating formula, the primary consideration of the Board of Veterans' Appeals (Board) is a Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). A Veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id at 117-18. The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Vazquez-Claudio, 713 F.3d at 117; 38 C.F.R. § 4.130. When it is not possible to separate the effects of the service-connected condition and the non-service-connected condition, VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (U.S. 1998). Here, the Veteran is service-connected for PTSD and has additional comorbid psychiatric disability (i.e., bipolar disorder), but it is not possible to differentiate what portion of his occupational and social impairment is caused by each disorder. See September 2017 VA Contract Examination Report; October 2020 VA Contract Examination Report. Therefore, his psychiatric symptoms will be attributed to his service-connected disability. In August 2019, the Veteran was involved in a severe single-vehicle motorcycle accident resulting in a traumatic brain injury (TBI). He suffered multiple scattered small bilateral cerebral hemisphere parenchymal hemorrhages. His symptoms include, among others, left hemiparesis, confusion and severe memory loss. The Veteran uses an electric wheelchair and requires the assistance of two people to transfer him to and from his wheelchair. See October 2020 VA Contract Examination Report. As explained below, the Veteran's August 2019 motorcycle accident appears to have be exemplative of a pattern of reckless and impulsive behavior. Indeed, a September 2017 contract examiner stated a belief that, at the time, the Veteran was "in a manic state upon presentation ... It is likely that his agitation, inability to concentrate and attend, sleep impairment, and impulsive behaviors are a result of the Bipolar Disorder symptoms." The examiner noted that, upon questioning, the Veteran recounted times where he engaged in highly risky behavior. It was noted that he had one of these events listed on the writings he brought with him; he indicated that he drove 100 m.p.h. on his motorcycle in the fog, "hungover." The Veteran stated that he "feels like I was killing myself on purpose for doing stupid things, dangerous things." At a prior April 2015 VA Mental Health Rapid Assessment, the Veteran reported: "My anger issues I guess, I'm sure it's related to the PTSD and the depression I have. I went out and drank, and drank too much, and I was driving and drove into my yard and damaged my truck. When I drink I threaten suicide." The Veteran's medical chart shows that, at the time of his August 2019 accident, "he had been off of his medications" and instead "was under the influence of alcohol, THC, ethanol, and benzos." The Board finds the Veteran's history of impulsivity, anger and recklessness both before and leading up to the August 2019 accident probative evidence as to the severity of his condition. The Board also observes, and takes into consideration the fact that the Veteran has experienced legal issues in connection with his psychiatric disability. In April 2015, the Veteran was jailed as a result of an altercation with his girlfriend. Subsequently, during the Veteran's January 2021 Board hearing, the Veteran's sister related a 2019 incident in which he had taken a baseball bat to the hood of his fiancée's car based on "paranoid thoughts" about a friend of hers; he was apparently arrested and taken into custody following this incident. See January 2021 Board Hearing Transcript. The Veteran's psychiatric disability has also affected his ability to maintain relationships. He relinquished his parental rights to his adopted son "because he could never bond or develop that relationship with that child." Id. The Veteran's relationship with his adopted daughter dissolved, as well. Id. ("...To the point where, you know, he had adopted her as his child, and that was dissolved as well. ... which was really sad, because they had developed a really close relationship."). The Veteran's sister and mother testified that their own relationships with the Veteran had suffered, while also noting that he experienced altercations with coworkers, resulting in terminations, and confrontations with neighbors and law enforcement, as a result of paranoia. The Veteran's sister testified that the Veteran had become so paranoid that he had begun to stash weapons throughout the house, installed security cameras all over the house, darkened windows, and installed extra locks on doors some of which he double bolted and barred. His sister testified that she was unclear when exactly this began, but noted that it had escalated over time. The Veteran's sister and mother testified that his condition had deteriorated significantly over time. His sister testified that he would go days without showering, while barely leaving his bed. Relatedly, in a December 2019 statement, the Veteran's mother reported that he was "[b]athing maybe once a week," that his "hair got long and shaggy" and that he left his "beard ungroomed." She added that he "didn't want to go outside" anymore and "had talked of leaving this earth and being with [his deceased daughter]." She also discussed the Veteran's emotional withdrawal and disproportionate anger, including an incident she witnessed and found particularly disturbing, in which the Veteran could not get his garage door opener to work, threw it against a building, and yelled so loud in anger he became hoarse. The Veteran's fiancée submitted statements in February 2020, as well. She echoed the observations of the Veteran's mother and sister in regard to his inability to maintain his personal hygiene (noting that he "was not taking care of himself, needed reminders to shower, shave, cut hair, etc."). She also related his suspiciousness of others, including the Veteran's reluctance to seek psychiatric care, the Veteran's mismanagement of his finances (referencing a $1,500 purchase of Star Wars memorabilia), his inability to hold a job due to poor concentration, his emotional outbursts at those closest to him, and his confrontations with neighbors. The Board also notes that during a January 2018 VA psychiatry appointment, prior to his 2019 accident, the Veteran reported that he did not feel that he could function in the workplace at that time or in the foreseeable future on account of symptoms of PTSD and bipolar disorder. His psychiatrist noted that the Veteran experienced "considerable social and occupational difficulty" on account of his symptoms. She also noted that the Veteran's girlfriend, despite recently moving out, still helped the Veteran set up his medication to ensure that he took it correctly. The Board recognizes that, for a portion on this period under review in 2016 and 2017, the Veteran was working intermittently. However, a September 2017 examiner made clear that the Veteran's psychiatric disability was greatly interfering with his ability to perform his work duties and hold a job. The examiner reported that the Veteran previously held a job in the heavy industry business but his nervousness led him to be fired. He was accused of making inappropriate statements that were derogatory and he was fired from the job when he was last evaluated. He then worked at a manufacturing company, but struggled and was fired. After a period of unemployment, he took another job but had an accident at work and was fired. By the time of the September 2017 examination he no longer worked. The Veteran noted at the time that he has made remarks to co-workers that were impulsive, spontaneous, and taken offensively. He did not believe that he could do any job anymore due to disorganization of his thinking and an inability to regulate his emotions. At his September 2017 examination, the Veteran reported experiencing suicidal thoughts and hallucinations for years. He described hearing things in his home that were not there. Previously, in April 2015, the Veteran had voluntarily scheduled himself for a psychiatric appointment through VA with a chief complaint of simply, "I need help." At this appointment, he endorsed having been homeless at one point, related the suicide of a former friend, who had shot himself in the head, and lamented the failed drug treatment of his ex-wife. A July 18, 2016 VA psychiatric note documents the Veteran's report that he thought about killing himself a few times. The Board finds that, throughout the period under review, the Veteran's psychiatric disabilities have manifested in total occupational and social impairment. His symptoms, as described above resulted in gross impairment in thought processes and communication, both before and after his August 2019 accident. He experienced delusions and grossly inappropriate behavior, particularly in relation to his paranoia and legal issues. He has posed a persistent danger of hurting himself throughout the entire appeal periodgoing so far as to say that when he drinks, he threatens suicide, and has driven both his motorcycle and his truck recklessly in an impaired state, to include prior to his 2019 accident. The testimony and other statements of the Veteran's sister, mother, and fiancée establish that the Veteran has intermittently been unable to perform activities of daily living (including maintenance of minimal personal hygiene). The Veteran was also unable to keep a job based on poor performance and his conduct during the period under review. Resolving all remaining doubt in the Veteran's favor, the Board finds that a 100 percent rating for service-connected PTSD is granted, effective his date of claim for increase, July 21, 2016. With the award of a total schedular rating for PTSD, the Veteran's parallel claim for entitlement to a TDIU based on the disabling effects of PTSD is rendered moot, and is dismissed. The Board has considered whether the Veteran may be eligible for special monthly compensation (SMC) at the housebound rate, but the Veteran's other service-connected disabilities (tinnitus, 10 percent; hearing loss, 10 percent; diabetes, 10 percent; and GERD, 0 percent) do not combine to 60 percent, nor is there any indication in the evidence or allegation from the Veteran that any one of those service-connected disabilities, other than PTSD, cause unemployability. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, 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.