Citation Nr: 21032499 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-40 221 DATE: May 27, 2021 ORDER Entitlement to an increased disability rating of 100 percent for posttraumatic stress disorder (PTSD), major depressive disorder, and alcohol use disorder with traumatic brain injury (TBI) is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to special monthly compensation (SMC) under 38 C.F.R. § 1114(s)(1) is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is dismissed as moot. FINDINGS OF FACT 1. The symptoms and overall impairment caused by the Veteran's service-connected PTSD, major depressive disorder, and alcohol use disorder with TBI more nearly approximated total occupational and social impairment throughout the appeal period. 2. The Veteran has a service-connected disability rated as total and additional service-connected disabilities ratable at 60 percent or more. 3. As a total (100 percent) increased disability rating for PTSD, major depressive disorder, and alcohol use disorder with TBI and SMC pursuant to 38 U.S.C. § 1114(s)(1) are being awarded for the appeal period, the issue of entitlement to a TDIU is rendered moot for the appeal period. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating of 100 percent for PTSD, major depressive disorder, and alcohol use disorder with TBI are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Codes (DCs) 8045-9411. 2. The criteria for SMC pursuant to 38 U.S.C. § 1114(s)(1) are met. 38 U.S.C. § 1114(s). 3. The issue of entitlement to a TDIU is moot. 38 U.S.C. §§ 1155, 7105; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to May 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) that continued the 70 percent evaluation for PTSD and denied the claim of entitlement to a TDIU. The Veteran timely appealed these matters. In October 2019, the claims on appeal were remanded by the Board for further development, to include obtaining a VA examination. The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's October 2019 remand instructions by, as demonstrated by the discussion below, obtaining a VA examination that is adequate to decide the claims. Thus, no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an increased disability rating for PTSD, major depressive disorder, and alcohol use disorder with TBI The Veteran is in receipt of a 70 percent evaluation for his service-connected PTSD, major depressive disorder, and alcohol use disorder with TBI under DCs 8045-9411. 38 C.F.R. §§ 4.124a, 4.130. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § § 4.27. Here, the use of DCs 8045-9411 reflects that the Veteran's acquired psychiatric disorder is partially described as a TBI under DC 8045 and that the rating assigned is based on PTSD under DC 9411. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(b). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. A 70 percent disability rating is warranted when 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; 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability 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; and memory loss for names of close relatives, own occupation, or own name. Id. Under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). During an April 2015 VA PTSD examination, the Veteran reported that he was single and did not have any friends. He denied having contact with his sister or brother and stated that he saw his mother twice monthly, but hardly saw his father. The Veteran noted that he was placed on suicide watch the week prior to the examination. He reported that he received approximately two hours of sleep each night, if lucky. The Veteran endorsed symptoms of frequent nightmares, headaches, dizziness, visions, anxiety, chronic sleep impairment, disturbances of motivation and mood, inability to establish and maintain effective relationships, and suicidal ideation. The VA psychologist found that the Veteran experienced occupational and social impairment with reduced reliability and productivity. A June 2015 VA treatment record noted that the Veteran reported the following symptoms: depression on a daily basis, agitation, anger outbursts, ongoing problems falling and staying asleep, frequent nightmares about past trauma, low energy level, fluctuating appetite level, feeling helpless/hopeless, ongoing suicidal thoughts, irritability, isolating from family/friends, low motivation to do things, memory issues, periods of mental confusion, becoming lost/wandering, auditory and visual hallucinations, paranoia, hypervigilance, being easily startled, unwanted thoughts of past events, flashbacks of past events, anxiety on a daily basis, panic attacks two to three times per week, and feelings of guilt and shame. A February 2016 VA treatment record indicated that the Veteran reported experiencing "visions." He reported that while at work he looked into a room and saw himself hanging from a light fixture. During an April 2016 VA PTSD examination, the VA psychologist noted the Veteran was on the VA's high risk for suicide watch list. The psychologist found that the Veteran endorsed symptoms of depressed mood, anxiety, panic attacks that occurred weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfered with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, neglect of personal appearance and hygiene, sleep problems (getting to and staying asleep with nightmares), severe anxiety around others, and negative intrusive thoughts with suicidal ideation. The psychologist found the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In a March 2017 VA psychiatry note, the Veteran reported short and long-term memory impairment, chronic sleep impairment, suicidal thoughts, panic attacks, difficulties with concentration, and melancholic, depressed, irritable, and anxious moods. He indicated that he mainly stayed at home other than when he went to work. The Veteran additionally reported that he heard voices that told him to kill himself and saw dead bodies, including his own. During an August 2018 VA PTSD examination, the Veteran reported more memory disturbance as he could no longer recall people's names at the job where he worked for 18 years. He indicated that his mother preferred he visit her weekly, however, his PTSD symptoms impacted his ability to visit her, so he cut back his visits to once a month. The Veteran endorsed symptoms of depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, impairment of short- and long- term memory, for example, retention of only highly learned material, while forgetting to complete tasks, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, and obsessional rituals which interfere with routine activities. The VA psychologist found that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. An October 2019 VA psychiatry note indicated that the Veteran reported that he had not experienced any improvements in mood and continued to feel depressed. The Veteran also reported that he continued to see dead bodies and heard voices telling him negative things, to include telling him to harm himself and others. He indicated he experienced chronic sleep impairment and suicidal ideation. A December 2019 VA treatment note indicated that the Veteran reported increasing panic attacks in frequency and intensity. The Veteran isolated himself at home and heard voices speaking negative content, to include "taking care" of those who wronged him. There was no change in his chronic suicidal ideation. During an August 2020 VA PTSD examination, the Veteran reported that he was no longer employed in his job of 19 years as of January 2019. He was put on medical leave, but retired from the position as his PTSD symptoms, to include his chronic sleep impairment and his inability to be around people, made him lose time at work. The Veteran noted that he lived alone and did not leave the house often. He spoke to his mother on the phone several times a month, but that was the extent of his social contact outside of professional meetings. The Veteran reported he heard voices telling him to harm himself and others at times. He endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and neglect of personal appearance. The VA psychologist found the Veteran experienced occupational and social impairment with reduced reliability and productivity. For the following reasons, the symptoms and impairment of the Veteran's service-connected PTSD, major depressive disorder, and alcohol use disorder with TBI more nearly approximate the criteria required for a total 100 percent increased disability rating throughout the appeal period. The evidence of record demonstrates that the Veteran experienced symptoms and impairment more nearly approximating total social and occupational impairment throughout the entire appeal period. The Veteran endorsed symptoms throughout the appeal period of persistent delusions or hallucinations, suicidal ideation, depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, neglect of personal appearance, impairment of short- and long- term memory, for example, retention of only highly learned material, while forgetting to complete tasks, flattened affect, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, and impaired impulse control, such as unprovoked irritability with periods of violence. Furthermore, the Veteran reported he has no friends and only speaks to his mother on the phone several times a month. The Veteran's overall impairment as a result of his PTSD, major depressive disorder, and alcohol use disorder with TBI symptoms includes extremely limited social interaction. He does not like being in the company of people and has almost completely isolated himself socially. Moreover, the Veteran asserts that his PTSD symptoms caused him to retire from his job as a phlebotomist of approximately 19 years. The evidence therefore reflects that, for the entirety of the appeal period, the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate the maximum schedular rating of 100 percent for his service-connected PTSD, major depressive disorder, and alcohol use disorder with TBI. Although the Veteran still speaks to his mother on the phone and therefore social impairment is not total, the evidence reflects that he no longer visits her in person due to his PTSD symptoms. Thus, the impairment approximates total social and occupational impairment. In this regard, there is no heightened requirement for a 100 percent rating under the general rating formula for mental disorders; the standard of 38 C.F.R. § 4.7, that the symptoms and impairment more nearly approximate the total occupational and social impairment for this rating, applies. See Del Valle v. Gober, No. 96-1116, 1997 U.S. Vet. App. LEXIS 960 (mem dec) (Oct. 1, 1997) (citing Giusti-Bravo v. United States Veterans Administration, 853 F. Supp. 34 (D.P.R. 1993) (discussing VA's San Juan Memorandum 82-3 which incorrectly advised rating board specialists to use heightened requirements for veterans seeking 100 percent disability ratings for psychiatric disorders). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). For the foregoing reasons, throughout the appeal period the Veteran's symptoms and impairment more nearly approximated the total occupational and social impairment required for an increased disability rating of 100 percent for PTSD, major depressive disorder, and alcohol use disorder with TBI. An increased disability rating of 100 percent is therefore warranted for the Veteran's service-connected PTSD, major depressive disorder, and alcohol use disorder with TBI. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to SMC under 38 C.F.R. § 1114(s)(1) Pursuant to 38 U.S.C. § 1114(s)(1), when a Veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to SMC. 38 U.S.C. § 1114(s)(1). The Court has held that VA has a "well-established" duty to maximize a claimant's benefits. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. Perciavalle v. Wilkie, 32 Vet. App. 117, 122 (SMC benefits are to be accorded when a Veteran becomes eligible without need for a separate claim). In the decision above, the Board has granted a 100 percent increased disability rating for the Veteran's service-connected PTSD, major depressive disorder, and alcohol use disorder with TBI. In addition, the Veteran is in receipt of service connection for other headache syndrome, rated at 50 percent, irritable bowel syndrome, rated at 30 percent, tinnitus, rated at 10 percent, and a noncompensable rating for bilateral hearing loss. Those ratings combine to at least 60 percent pursuant to 38 C.F.R. § 4.25. As the Veteran meets the statutory criteria during the appeal period of a service-connected disability rated as total and additional service-connected disability independently ratable at 60 percent, entitlement to SMC under 38 U.S.C. § 1114(s)(1) is warranted. Entitlement to a TDIU Although a TDIU is warranted "where the schedular rating is less than total," a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for SMC benefits pursuant to 38 U.S.C. § 1114(s)(1). Buie, 24 Vet. App. at 242; Bradley v. Peake, 22 Vet. App. 280 (2008). However, as the Board is granting for the appeal period a 100 percent increased disability rating for PTSD, major depressive disorder, and alcohol use disorder with TBI and SMC pursuant to 38 U.S.C. § 1114(s)(1), the issue of entitlement to a TDIU during the appeal period is moot. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.