Citation Nr: 22013643 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 16-63 441 DATE: March 10, 2022 ORDER An initial increased rating of 100 percent prior to February 3, 2021, for posttraumatic stress disorder (PTSD), with major depressive disorder and alcohol use disorder, is granted. FINDINGS OF FACT 1. The competent and probative evidence shows that the Veteran's PTSD, with major depressive disorder and alcohol use disorder, is manifested as total occupational and social impairment for the period prior to February 3, 2021. 2. The Veteran's alcohol use disorder and major depressive disorder are secondary to PTSD and have overlapping symptoms; the disorders likely aggravate each other and such has been considered in this decision. 3. The award of a rating of 100 percent over the appeal period for PTSD, with major depressive disorder and alcohol use disorder, throughout the claim period renders the issue of entitlement to a TDIU moot. CONCLUSION OF LAW The criteria for an increased rating of 100 percent for PTSD, with major depressive disorder and alcohol use disorder, are met prior to February 3, 2021. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, DC 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1993 to August 1995, and from January 2009 to December 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. This appeal has previously been before the Board. In January 2021 the Board granted an increased rating of 70 percent for the Veteran's service-connected PTSD. Thereafter, the Veteran appealed to the United States Court of Appeals for Veteran's Claims (Court). In a January 2022 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate and remand the January 2021 Board decision, due to the Board's failure to provide an adequate statement of reasons or bases in failing to address all the relevant evidence of record and explain why the Veteran was not entitled to a 100 percent disability rating, as well as in failing to adjudicate TDIU. Specifically, regarding the claim for an increased rating for PTSD, the parties agreed that the Board did not consider the findings in the 2020 private PTSD examination, which reflected gross impairment in thought processes or communication and persistent delusions or hallucinations. Additionally, the Board failed to provide an adequate statement of reasons or bases that addresses the evidence of the Veteran's intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Further, the Board failed to adequately address evidence of the severity, frequency, and duration pertaining to the symptoms of persistent danger of hurting self or others; the August 2020 examination found persistent danger of hurting himself or others based on the Veteran's continuing suicidal ideation and last suicide attempt by taking pills in December 2019, and an impaired impulse control, such as unprovoked irritability with periods of violence. Regarding TDIU, the parties agreed it had been raised. The Veteran testified that he was terminated from his employment due to his PTSD symptoms. See 9/3/2020 Hearing Transcript, at page 4; see also 9/23/2020 Medical treatment Record Non-Government Facility, at page 1. A TDIU is part of an increased disability rating claim when such claim is raised by the record and when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability. This TDIU matter will be considered part and parcel of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, the Board has jurisdiction of the TDIU matter via Rice. While the appeal for an increased rating for PTSD was pending, a March 2021 rating decision granted an increased rating of 100 percent for PTSD, effective February 3, 2021. Although an increased rating was granted, the issue remains in appellate status as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Veteran has been rated at either 70 or 100 percent disabling for PTSD during the period on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *11 (Fed. Cir. Dec. 17, 2021). The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. An initial rating for PTSD, with major depressive disorder and alcohol use disorder, prior to February 3, 2021. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, in pertinent part, 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. The criteria for a 100 percent rating are: 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The record showed that the Veteran was assigned an initial disability rating of 50 percent in a December 2015 rating decision that granted service connection, effective May 29, 2015. The January 2021 Board decision granted an initial increased rating of 70 percent for the entire period. As noted above, in order to warrant a higher rating, the Veteran's disability would have to be manifested by a total occupational and social impairment. The Veteran contends that he is entitled to an increased disability rating because he experienced suicidal ideation and difficulty at work and with relationships with people and family. See 4/19/2016 NOD. Additionally, his wife stated that they were having marital problems and that the Veteran had threatened to take his life on multiple occasions. Further, the Veteran acts out with violence and is socially withdrawn, unpredictable, and impulsive. Moreover, the Veteran had difficulty remembering things, such as eating and bathing. See 9/12/2020 Buddy / Lay Statement. In addition, the Veteran testified that he experiences nightmares, night sweats, violent outbursts, social withdrawal, constant stress, hypervigilance, paranoia, memory loss, and suicidal ideation 2 or 3 times per month. Furthermore, the Veteran testified that he has overdosed on several occasions. Also, the Veteran's wife testified that the Veteran experiences memory loss; he forgets dates and where he put things. Also, his wife testified that he is constantly stressed out, socially withdrawn, and violent at times; he hit walls and slams doors. Additionally, the Veteran testified that he lost his job due to his psychiatric disorder. See 9/3/2020 Hearing Transcript, at pages 2-8. After review of the competent and relevant medical and lay evidence, the Board finds that a rating of 100 percent for PTSD, is warranted for the period prior to February 3, 2021. Turning to the relevant evidence, the Veteran underwent a VA PTSD disability benefits questionnaire (DBQ) in November 2015. The examiner noted that the Veteran had symptoms, such as a depressed mood, anxiety, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, an inability to establish and maintain effective relationships, and suicidal ideation. The objective examination showed that the Veteran was cooperative, casually dressed, well groomed, and oriented in all four spheres. Additionally, he had no hallucinations, delusions, or significant cognitive impairment. Further, the examiner reported that the Veteran complained of experiencing from a chronically anxious and dysphoric mood, and he displayed a restricted range of affect. Moreover, the Veteran admitted to experiencing episodic suicidal ideation without a specific plan. Finally, the examiner opined that the Veteran had an occupational and social impairment due to mild or transient symptoms. See 11/17/2015 C&P Examination. An April 2016 private DBQ, noted that the Veteran was diagnosed with PTSD and exhibited suicidal ideation, difficulty working with people, family issues, and relationship problems. The DBQ also noted an occupational and social impairment manifested as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. However, the Board notes that this questionnaire is not complete, nor is it signed or dated. Without knowing the author, it is difficult to know if the author had any knowledge, training, or experience in treating and/or assessing mental health disorders. Therefore, it lacks competence and has no probative value. However, other pieces of probative, competent evidence of record allow the Board to assemble the Veteran's disability picture. A January 2017 private DBQ from Dr. J.L., Ph.D., diagnosed the Veteran with PTSD and other specified depression disorder. The Veteran's symptoms were noted to include a depressed mood, anxiety, a flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and suicidal ideation. Additionally, it was noted that the Veteran had ongoing divorce battles. Finally, Dr. J.L. opined that the Veteran had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See 1/24/2017 Disability Benefits Questionnaire (DBQ) Veteran Provided. A more recent August 2020 private DBQ from Dr. J.L., diagnosed the Veteran with PTSD, severe alcohol use disorder, and moderate major depressive disorder. The Veteran's symptoms were noted to include a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, an impaired judgment, abstract thinking, and impulse control, and disturbances of motivation and mood. Additionally, he had difficulty establishing effective work and social relationships, difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships, and suicidal ideation. Further, he had persistent danger of hurting himself or others, and an intermittent inability to perform activities of daily living, such as maintenance of minimal personal hygiene. Moreover, the examiner noted that the Veteran had gross impairment in thought processes or communication and persistent delusions or hallucinations. Finally, Dr. J.L., opined that the Veteran had an occupational and social impairment with deficiencies in most areas. See 8/21/2020 VA examination. A September 2020 private treatment note showed that the Veteran made a suicide attempt by oxycodone overdose. Additionally, a mental status examination noted that the Veteran was hypervigilant and had a depressed mood, a mildly dysphoric affect, and a persistent passive suicidal ideation. Furthermore, the Veteran stated that he was fired from his job because of problems with coworkers due to his PTSD irritability symptoms. However, the examination also noted that the Veteran's speech had a normal rate, volume, and tone. Additionally, his thoughts were logical, linear, and goal directed with no delusions or auditory or visual hallucinations. See 9/23/2020 Medical Treatment Record Non-Government Facility, at pages 1 and 2. Resolving any doubt in favor of the Veteran, the Board finds that the Veteran's symptomatology for the period on appeal most closely approximates the severity of symptoms contemplated by total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication, persistent danger of hurting himself, and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. That is, the severity of symptoms contemplated by a 100 percent rating for PTSD under the General Rating Formula. 38 C.F.R. § 4.130, DC 9411. Specifically, as mentioned above, the evidence of record contains statements from the Veteran and his wife regarding the Veteran's symptoms of suicidal ideation, difficulty at work and with relationships with people and family. See 4/19/2016 NOD. Additionally, his wife stated that they were having marital problems and that the Veteran had threatened to take his life on multiple occasions. Further, the Veteran's wife testified that the Veteran experiences memory loss; he forgets dates, where he put things. Also, his wife testified that he is constantly stressed out, socially withdrawn, and violent at times; he hit walls and slams doors. See 9/3/2020 Hearing Transcript, at pages 2-8. The Board finds these statements submitted by the Veteran and his wife to be competent, credible, and probative as to the material issue of the severity of the Veteran's PTSD. Further, the Board finds that the PTSD symptoms described in the August 2020 private DBQ, including memory loss, an impaired judgment, impulse control, and abstract thinking, persistent danger of hurting himself or others, gross impairment in thought processes or communication, persistent delusions or hallucinations, and an intermittent inability to perform activities of daily living, such as maintenance of minimal personal hygiene, coupled with the persistent suicidal ideation noted in the September 2020 private treatment note, more nearly approximate total occupational and social impairment, which warrants a 100 percent rating for PTSD. The Board acknowledges the November 2015 VA examination report and the examiner's finding that the Veteran had occupational and social impairment due to mild or transient symptoms, the severity contemplated by a 10 percent rating for PTSD, rather than total occupational and social impairment. However, the Board has engaged in a holistic analysis and taken into consideration the Veteran's overall PTSD disability picture and finds that it is most nearly approximated by total occupational and social impairment. For the foregoing reasons, the Board finds that entitlement to the higher and maximum schedular rating of 100 percent rating for service-connected PTSD is thus warranted for the period prior to February 3, 2021. 38 See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. A TDIU. The Veteran raised the issue of a TDIU; he testified that he was terminated from his employment due to his PTSD symptoms. See 9/3/2020 Hearing Transcript, at page 4; see also 9/23/2020 Medical treatment Record Non-Government Facility, at page 1. By virtue of this decision, the Veteran is awarded herein a 100 percent schedular rating for his PTSD throughout the entire period on appeal. This 100 schedular rating means that the Veteran is totally disabled, to include occupationally. See Holland v. Brown, 6 Vet. App. 443, 446 (1994) (citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990)). (Continued on the next page) When VA finds a veteran to be totally disabled because of a service-connected disability or disabilities pursuant to the rating schedule, there is no need and no authority to rate the 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 schedular rating was awarded for the same period). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.