Citation Nr: 21029234 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-35 563A DATE: May 13, 2021 ORDER 1. A 100 percent total rating for posttraumatic stress disorder (PTSD) is granted throughout the period for consideration (from May 16, 1989 to March 28, 1994), subject to regulations governing payment of monetary awards 2. Entitlement to a total disability rating based on individual unemployability (TDIU) from May 1989 to March 1994 is dismissed as moot. FINDINGS OF FACT 1. From May 16, 1989 to March 28, 1994, the Veteran's PTSD is reasonably shown to have produced demonstrable inability to obtain or retain employment. 2. As the Veteran has been granted a 100 percent rating for his PTSD, the issue of entitlement to TDIU is dismissed as moot. CONCLUSIONS OF LAW 1. A 100 percent total rating for the Veteran's PTSD is warranted throughout from May 16, 1989 to March 28, 1994. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.132, Diagnostic Code (Code) 9411. 2. The claim of entitlement to 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 November 1966 to December 1969. This matter is before the Board on appeal from a December 2010 rating decision, which granted an earlier effective date of May 16, 1989 for the award of service connection for PTSD and assigned a 10 percent rating from that date to March 28, 1994. An interim September 2014 rating decision increased the rating for PTSD for that period to 50 percent. The Board issued a decision in December 2019 granting a 70 percent rating for service-connected PTSD from May 1989 to March 1994. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (CAVC). In January 2011, CAVC granted a Joint Motion for Partial Remand (JMPR) by the Veteran's representative and the Secretary of VA, vacating the December 2019 Board decision and then remanding the instant claim to the Board. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). 1. A 100 percent total rating for the Veteran's PTSD, is warranted throughout from May 16, 1989 to March 28, 1994. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.132, Diagnostic Code (Code) 9411 (effective prior to November 7, 1996). As noted above, the Board, in a December 2019 decision, granted the Veteran an initial disability rating of 70 percent disabling for his service-connected PTSD, for the period from May 1989 to March 1994. This rating was instituted by the RO in a December 2019 rating decision. The Veteran appealed this decision to CAVC which remanded this decision to the Board to evaluate the Veteran's PTSD under the correct diagnostic code (DC) 9411. The parties reminded the Board that each of the grounds set forth in the pre-November 1996 version of the rating criteria for evaluating psychiatric disorders provide an independent basis for granting a 100 percent rating. Johnson v. Brown, 7 Vet. App. 95, 97-98 (1994). For reasons explained below, the Board finds a 100 percent total schedular rating is warranted for the period from May 1989 to March 1994. . Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board notes that VA revised the rating criteria for PTSD effective November 7, 1996. When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal, if they are more favorable to him. The revised rating criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110 (g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the former rating criteria for evaluating PTSD, effective before November 7, 1996, PTSD was evaluated under the General Rating Formula for Neuropsychiatric Disorders found in 38 C.F.R. § 4.132. See 38 C.F.R. § 4.132, DC 9411 (effective prior to November 7, 1996). A 70 percent rating was assigned under the former rating criteria for evaluating PTSD where the ability to establish and maintain effective or favorable relationships with people was severely impaired. The psychoneurotic symptoms were of such severity and persistence that there is severe impairment in the ability to obtain or maintain employment. A maximum 100 percent rating was assigned under the former rating criteria for PTSD where the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality were present with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior and a demonstrable inability to obtain or retain employment. Id. In his May 1989 claim, the Veteran reported being divorced, arrested several times, imprisoned, and involved with drugs because of his PTSD. He further endorsed sleep disturbance, flashbacks, night sweats, and anger. A March 1994 psychiatric assessment for a PTSD program noted that the Veteran lived in a drug rehab halfway house, had PTSD, and was unemployed due to his drug and alcohol use. An April 1994 Psych Discharge Summary states that the Veteran is "unemployable because of his orthopedic and PTSD difficulties in any labor market." In June 1994, the Veteran underwent a Compensation and Pension (C&P) examination. The Veteran described himself as having extreme difficulty forming intimate social relationships. The examiner noted the fact that the Veteran has a very erratic work history with no job lasting longer than one year. The examiner further noted that the Veteran primarily worked as a tile setter, and was presently unemployed. The examiner opined that the Veteran would not be considered employable currently due to severity of his various PTSD symptoms. An August 1994 Community Medical Referral includes a notation which states, "patient [Veteran] is currently unemployable secondary to PTSD. A private Vocational Assessment was provided in February 2018 by J.C., a vocational expert. The expert was asked to opine on whether the Veteran was unemployability due to his PTSD from May 1989 to March 1994. The examiner noted her review of the Veteran's VA claims file, and interview of the Veteran. The expert opined that it is more likely than not that the Veteran's service-connected PTSD precluded him from securing and following substantially gainful employment from May 1989 to March 1994. The rationale explains that the Veteran was unable to sustain the concentration and focus required of competitive employment, unable to interact appropriately with others in a workplace setting, and unable to attend to a workplace schedule. It was explained that a vocational expert is uniquely qualified to evaluate how specific limitations impact the performance of work activity. After a careful review of all the medical evidence of record, pertinent to the applicable time period at issue in this case, and after resolving all reasonable doubt in favor of the Veteran, the Board finds that, since May 1989 to March 1994, the Veteran's ability to obtain or retain employment was severely impaired. As such, the Board finds that the Veteran's service-connected disability more nearly approximated the criteria for an initial 100 percent disability rating. Treatment records demonstrate the Veteran's unemployability due to his PTSD. Indeed, an April 1994 Psych Discharge Summary noted the Veteran's unemployability due to PTSD. The June 1994 VA examiner opined that the Veteran would not be considered employable currently due to severity of his various PTSD symptoms, and an August 1994 Community Medical Referral includes a notation which states, "patient [Veteran] is currently unemployable secondary to PTSD." Moreover, upon interview of the Veteran and review of his claims file, a vocational expert found that it is more likely than not that the Veteran's service-connected PTSD precluded him securing and following substantially gainful employment from May 1989 to March 1994; rationalizing that the Veteran was unable to sustain the concentration and focus required of competitive employment, unable to interact appropriately with others in a workplace setting, and unable to attend to a workplace schedule. In light of the above, the collective evidence supports a finding that, from May 16, 1989, the Veteran showed a demonstrable inability to obtain or retain employment, which is consistent with a 100 percent total disability rating under the pre-November 7, 1996 criteria. This is the maximum rating provided under Diagnostic Code 9411, pre-November 7, 1996 criteria. A higher schedular rating is therefore denied as a matter of law. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) from May 1989 to March 1994 is dismissed. (Continued on the next page) The parties to the November 2020 Joint Motion for Partial Remand noted that remand was warranted for the Board to specifically consider whether the issue of entitlement to a TDIU was reasonably raised by the record, during the applicable period. The Veteran has herein been awarded a 100 percent schedular rating for his PTSD. The Board thus finds that the Veteran's claim for entitlement to TDIU is now moot. In so finding, the Board notes that in Herlehy v. Principi, 15 Vet. App. 33, 35 (2001), the Court of Appeals for Veterans Claims (Court) held that the grant of a schedular 100 percent disability evaluation moots the issue of any entitlement to TDIU based solely on that disability. Here, the Veteran's only service-connected disability during the applicable time period of May 16, 1989 to March 28, 1994 is PTSD, which is now rated at 100 percent disabling on a schedular basis. Therefore, a separate TDIU rating predicated on the Veteran's PTSD would be impermissible pyramiding and is not applicable. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). As a result, the issue of entitlement to TDIU is moot and must be dismissed. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.