Citation Nr: 21031530 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-67 328 DATE: May 24, 2021 ISSUES Entitlement to a rating in excess of 50 percent, prior to July 10, 2017, for posttraumatic stress disorder (PTSD). Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER Entitlement to a 100 percent rating, prior to July 10, 2017, for PTSD, is granted. Entitlement to TDIU is dismissed as moot. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, prior to July 10, 2017, his PTSD resulted in total occupational and social impairment. 2. The Veteran's service-connected PTSD is rated at 100 percent on a schedular basis. A TDIU is a lesser benefit than a 100 percent schedular rating for PTSD, and the claims for a TDIU and an increased rating for PTSD arose at the same time and are essentially premised on the same evidence. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent rating, prior to July 10, 2017, for PTSD have been met. 38 U.S.C. §§, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.125, 4.130, Diagnostic Code 9411. 2. The issue of entitlement to TDIU is dismissed as moot. 38 U.S.C. § 7105; Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 2005 to August 2014. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2017 rating decision, the RO granted service connection for PTSD and assigned a 30 percent rating, effective August 2, 2014 and a 100 percent rating, effective July 10, 2017. An October 2017 rating decision granted a 50 percent rating, effective August 2, 2014. The Veteran seeks an increased rating for the period prior to July 10, 2017. In March 2020, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran's electronic claims folder. 1. Entitlement to a rating in excess of 50 percent, prior to July 10, 2017, The Veteran contends that he is entitled to a rating in excess of 50 percent, prior to July 10, 2017, for his PTSD. He stated that he suffered from severe depression, constant anxiety and panic attacks. See November 2017 VA Form 9. He testified that the symptoms he exhibited at his July 2017 VA examination were the same prior to July 2017. See Board Hearing Transcript, p. 8. For the reasons explained below, the Board finds that a 100 percent rating is warranted, prior to July 10, 2017. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. VA mental health treatment records from 2016 indicate that the Veteran had increased mental health symptoms including difficulty sleeping; irritable and angry outbursts; difficulty concentrating; flashbacks; hypervigilance; and depression. He reported that these symptoms occurred more than half the week or nearly every day. He also reported that these symptoms made it extremely difficult to work, take care of things at home or get along with other people. He endorsed passive thoughts of death, but denied any suicidal or homicidal ideations. He was found to be at low risk for suicide. On his VA Form 9, he stated that prior to his discharge, he experienced severe mental health symptoms which interfered with his ability to complete his job. He reported that his gun was taken away from him and he was given the option to voluntarily separate from service or face a medical evaluation board. He stated that he was told his GAF score was a 40. He reported that he has been totally impaired socially and occupationally and has not been employed since his service separation. Although he reported that he started community college, he could not continue due to his mental health symptoms. He reported that he has no contact with most of his family, including his ex-wife, due to his fits of rage and attacking male family members. He reported that he believes he will die soon. Based on the foregoing, the Board finds that the evidence of record is at least in relative equipoise as to the level of psychiatric disability, and as to whether it is reasonable to conclude that the disability picture is comparable to a 100 percent rating for the service-connected PTSD, prior to July 10, 2017. The Veteran's symptoms of depressed mood, anxiety, sleep impairment, nightmares, disturbances of mood, difficulty concentrating and inability to control his anger are severe, and have occurred often since the inception of the Veteran's original claim for service connection in 2014. The Veteran has had periods of times when his symptoms have temporarily improved; however, the symptoms have generally been consistent. His bouts of anger have caused him to be unable to interact with most people, even his own family members. Although the Veteran did not experience any active suicidal ideations, there is a clear history of him having such thoughts. The July 2017 VA examiner found that the Veteran suffered from total social and occupational impairment. The Board credits this assessment. The Board further credits the Veteran's statement that the symptoms observed at the July 2017 VA examination were the same prior to that examination. There is no evidence to the contrary. Based on the frequency, severity and duration of the Veteran's symptoms, the Board finds that the Veteran has total occupational and social impairment. In view of the above, the Board finds that the application of the benefit-of-the-doubt doctrine contemplated by 38 U.S.C. § 5107 (b) is appropriate in this case. As stated, the level of disability, when the benefit of the doubt is given to the Veteran, is approximately commensurate with the 100 percent rating under Diagnostic Code 9411 under current rating criteria. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. Entitlement to TDIU As noted in the introduction, in the October 2017 rating decision, the RO granted a 100 percent rating for the Veteran's PTSD, effective July 10, 2017. The instant decision grants a 100 percent rating for PTSD, prior to July 10, 2017. Therefore, the Veteran's PTSD has been rated at 100 percent since service separation. The current claim for a TDIU and an increased rating for PTSD have been recognized as essentially arising at the same time and involving the same evidence. Hence the grant of an increased 100 percent schedular rating for PTSD renders the claim for a TDIU moot. The appeal as to the TDIU issue is, therefore, dismissed. The Veteran would not be entitled to a TDIU at the same time he was in receipt of a 100 percent rating based on the same disability. A TDIU rating may proceed where the TDIU rating is potentially available for a disability other than the disability for which a 100 percent rating was in effect. Bradley v. Peake, 22 Vet. App. at 280. Here, the evidence is clear that the Veteran's service-connected PTSD is the cause of his unemployability. Therefore, the issue of TDIU is dismissed as moot. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Baskerville, LaRita 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.