Citation Nr: 21028920 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-24 899A DATE: May 12, 2021 ORDER Entitlement to an initial 100 percent rating for posttraumatic stress disorder (PTSD) with alcohol use disorder (also claimed as depression and anxiety) (hereinafter PTSD) is granted. Entitlement to a total disability rating due to individual unemployability (TDIU) is dismissed. FINDINGS OF FACT 1. The Veteran's PTSD symptoms result in total occupational and social impairment throughout the pendency of the appeal. 2. As the Veteran has been granted a 100 percent schedular rating for the entirety of the appeal period, the issue of entitlement to TDIU is moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 100 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. Entitlement to a TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to June 1976. In a June 2019 decision, the Board granted an initial rating of 70 percent for PTSD with alcohol use disorder (also claimed as depression and anxiety) and denied an initial rating in excess of 70 percent for PTSD. The Board also found that the issue of entitlement to a TDIU had not been raised by the record. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In an April 2020 Order, the CAVC granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the June 2019 Board decision as it pertained to the claim for an initial rating in excess of 70 percent for PTSD and entitlement to a TDIU. The case has been returned to the Board for further adjudication. 1. Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) In an August 2014 rating decision, the RO granted service connection for PTSD with alcohol use disorder (also claimed as depression and anxiety). An evaluation of 50 percent was assigned, effective April 7, 2013. The Veteran appealed this initial rating. In a June 2020 rating decision, the RO granted an increased rating of 70 percent for the service-connected PTSD, effective April 7, 2013. The Veteran continues to appeal this initial rating. The Veteran contends that he is entitled to a higher disability rating for his PTSD. Upon review of the claims file, the evidence supports a 100 percent rating for the entirety of the appeal period. A 100 percent evaluation requires the Veteran's PTSD to cause total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The medical evidence of record shows that between 2012 and 2014, the Veteran has reported and endorsed symptoms reflective of grossly inappropriate behavior and a danger of hurting himself and others. See April 2014 VA mental health treatment notes from VA Medical Center (VAMC) in Phoenix, Arizona; April 2014 evaluation by J.E., MSW during VA mental health treatment at the VAMC in Phoenix, Arizona; June 2014 VA PTSD examination; October 2014 and September 2015 evaluations by S.S., LMSW, November 2014 and October 2015 treatment reports from S.S., LMSW, of the Mesa Vet Center; December 2015 Independent Assessment by D.S., Ph.D., December 2015 VA PTSD examination, March 2016 vocational counseling report, March 2016 treatment report from S.S., LMSW, July 2017 VA PTSD examination, April 2018, April 2019, and October 2020 evaluations by F.A., MD, and March 2021 evaluation by M.L.C., MD. Specifically, he has reported during VA and private psychological evaluations increasing problems with aggression, fits of rage, intense anger, irritability, and several physical and verbal altercations and arguments with co-workers, supervisors, and strangers. He has also had several arrests for public intoxication, fighting, and driving while intoxicated. The Board notes that the June 2014 VA examiner and the March 2021 examiner concluded that the Veteran's alcohol abuse over the years is due to his PTSD. See June 2014 VA examination report and March 2021 evaluation by M.L.C., MD. The Veteran also reported during mental health treatment in October 2014 that he had given away his guns due to safety concerns. See October 2014 mental health treatment evaluation by S.S., LMSW. Furthermore, he has described himself as a threatening and violent individual. See April 2014 statement in support of claim for PTSD, August 2014 correspondence from the Veteran, and November 2014 notice of disagreement (NOD). The Veteran has also endorsed persistent suicidal ideation throughout the appeal period, as well as persistent intrusive thoughts and memories, persistent self-loathing thoughts, altered thought processing since 2012, and classic dissociative episodes where he can be triggered by sound, sight, or smell to reexperience traumatic events. The Veteran also reported during his March 2021 evaluation that he could not manage his day to day life without fear and panic. The record also shows that the Veteran's PTSD symptoms have resulted in total social and occupational impairment throughout the appeal period. In this regard, from at least 2012, the Veteran has reported that he has been socially isolated, with no family support or close friends, no interaction with his children or siblings, no marriage or other consistent romantic relationship, and no familial relationships. In addition, since 2017, he has been living in a camper in the woods to escape society and is largely estranged from his family. The Veteran has also reported during treatment and examinations throughout the appeal period that he has been fired from many jobs due to insubordination and confrontational behavior, and that frequent conflict on jobs has resulted in him being fired or quitting 30 jobs in approximately 10 years. Moreover, several examiners throughout the pendency of the appeal have concluded that the Veteran's PTSD prevents him from maintaining gainful employment. M.C. who evaluated the Veteran in April 2014, noted the Veteran's report that he had been unable to sustain employment since 2012 when he worked as a truck driver and received a DUI charge while intoxicated. S.S., LMSW concluded in 2014 and 2015 that the Veteran was unemployable due to his PTSD symptoms. His vocational counselor concluded in 2016 that the Veteran's PTSD symptoms impaired his ability to maintain employment. Most recently, a March 2021 examiner, M.L.C, MD, noted that the Veteran has consistently lost jobs after a matter of months due to his PTSD symptoms and has not earned a living wage since 2013. He also noted that the Veteran has become more socially isolated and numb, marring his social functioning, and opined that the Veteran has had no meaningful or gainful employment since at least 2014. Specifically, Dr. M.L.C. concluded that the Veteran was likely deteriorating since 2012 due to his PTSD symptoms, but this was masked by his work as a truck driver where he did not have to interact with others. He noted further that the medical records show a steady deterioration in overall functionality since 2014, resulting in a life of isolation. The doctor also noted that in recent years medical records reflect a stabilization of the Veteran's PTSD symptoms, but this is only due to the largely reclusive and stress-free life he currently leads, and were he to return to the workforce, or even participate marginally more in social activities, it is highly likely that he would quickly deteriorate, as he has done numerous times before. The doctor concluded that the Veteran's constellation of recurrent, severe, and intractable PTSD-based symptomatology has made him progressively more unemployable in a modern workplace, and there is no question that the Veteran could not function in a basic occupational setting since 2014. While the above are just individual instances of the severity of the Veteran's PTSD, taken as a whole, the evidence demonstrates symptoms of sufficient severity, frequency, and duration to those contemplated in the 100 percent rating criteria. Based on the foregoing evidence, the Board finds that the Veteran's overall disability picture equates to total occupational and social impairment. In sum, the evidence demarcated above supports an award of a 100 percent disability rating for PTSD for the entirety of the appeal period. 2. Entitlement to a TDIU The Veteran filed his formal claim for TDIU in April 2021. He reported in his claim for TDIU that he became too disabled to work in December 2013. However, in the April 2021 Appellate Brief, the Veteran's attorney indicated that, as the evidence of record shows that the Veteran's symptoms have only prevented him from working gainfully since January 1, 2014, a higher rating for PTSD or TDIU was only being requested as of January 1, 2014. See April 2021 attorney's statement (Appellate Brief). The Veteran is service-connected for PTSD and tinnitus, and, in this decision, he has been awarded a 100 percent scheduler rating for his PTSD for the entirety of the appeal period. 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 scheduler rating was awarded for the same period). The Board notes that the Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. In this matter, the Veteran seeks entitlement to a TDIU based upon his service-connected PTSD. See the Veteran's VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) dated April 2021. He has not asserted, nor does the record suggest, that he is entitled to a TDIU based upon his other service-connected disability (tinnitus) at any time during the appeal. Thus, the Veteran's claim for a TDIU is moot, as he has been awarded a 100 percent schedular rating for the entirety of the appeal period. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.