Citation Nr: 22019599 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-52 683 DATE: April 1, 2022 ORDER For the appeal period prior to February 2015, entitlement to an evaluation of 100 percent for the service-connected post-traumatic stress disorder (PTSD), is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been rendered moot and is dismissed. FINDINGS OF FACT 1. For the appeal period prior to February 2015 the Veteran's PTSD disability has demonstrated total occupational and social impairment. 2. Throughout the appeal period, the Veteran has been in receipt of a total 100 percent schedular rating for his service-connected disabilities. CONCLUSIONS OF LAW 1. For the appeal period prior to February 2015, the criteria for a rating of 100 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU is not met as it is moot, and the claim is dismissed. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1973 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an October 2021 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. 1. For the appeal period prior to February 2015 entitlement to an evaluation in excess of 50 percent for PTSD The Veteran contends for the rating period prior to February 2015 a 100 percent rating is warranted for the entire appeal period because the initial evaluation did not reflect an accurate representation of his symptoms. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a December 2014 rating decision, the RO granted the Veteran service connection for a PTSD disability with a 50 percent evaluation under Diagnostic Code (DC) 9411, effective November 4, 2008. See 38 C.F.R. § 4.130. In a September 2015 rating decision, the RO increased the Veteran's evaluation for to 100 percent, effective February 26, 2015. The Veteran's PTSD is rated under DC 9411, 38 C.F.R. § 4.130. Under DC 9411, the following applies: A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 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 an inability to establish and maintain effective relationships. A 100 percent rating is warranted 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 of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of 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. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Per applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, not solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). Turning to the evidence, in January 2003 VA treatment records a mental status examination indicated the Veteran was well groomed with normal speech. He was alert and fully oriented. His affect was quiet and cooperative with organized, coherent, and goal-oriented thought process. He denied suicide ideation, plan, or attempt. He admitted to hallucinations of his first Sergeant and expressed angry feelings toward this person. An assessment revealed paranoia with depression. In March 2003 VA treatment records, it was noted the Veteran had auditory hallucinations as he believed a former sergeant was following him around. He believed the sergeant had come to his home and taken his insomnia medication. He was alert and oriented. In August 2008 VA treatment records the Veteran reported hearing voices and seeing his first sergeant in the waiting room with him. He indicated sometimes he hears him talking to him and threatening him. The Veteran is paranoid and on guard with strangers and in crowds. In April 2010 VA treatment records a mental status examination indicated the Veteran was well groomed with normal speech. He was moderately depressed with appropriate affect. He was oriented with memory intact. His thought process demonstrated some mild circumstantiality and tangentiality. He had chronic low-grade paranoid ideation and chronic hallucinations or delusions. He denied suicidal and homicidal ideation or plans. He was diagnosed with paranoid schizophrenia near baseline compensated state PTSD. In April 2011 VA treatment records reflected a call from the Veteran where he reported suicidal ideations with no plan or intent. He indicated he was depressed and frustrated over finances and his current service connection claims and called the suicide hotline for support. In June 2011 VA treatment records a letter from a psychiatrist indicated the Veteran had severe depression mostly marked for anhedonia, sadness, poor sleep, low energy, high guilt, and suicidal thoughts. In October 2011, December 2011, and February 2012 VA treatment records the Veteran denied suicidal and homicidal ideation. There was no evidence of thought disorder, and his affect was appropriate. His mood was euthymic. In April 2013 VA treatment records a suicide risk assessment indicated the Veteran had a low risk of suicidal behavior. He denied thoughts of suicide or self-harm. In April 2014 VA treatment records the Veteran indicated the last suicide attempt was in the 1980's with an overdose of medication. He denied current thoughts or plans of harming himself or others; He was well groomed and cooperative. His thought process was logical, and goal directed, and his speech was fluent. He denied hallucinations and he had fair insight and judgment. He was oriented to person, place, time, and situation. He reported his nightmares have worsen due to his risperidone medication. An April 2014 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with mild PTSD. The examiner determined the Veteran's level of occupational and social impairment was due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran reported he is divorced but he has a female friend that has declined to live with him. He has 3 children with whom he has no relationship with. He has grandchildren but he never sees them. The symptoms that actively applied to the Veteran were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful relationships, and inability to establish and maintain effective relationships. He reported having nightmares and delusions that his former first sergeant is out to get him. He has difficulty sleeping due to this delusion and is fearful in public. He had problems at his job due to the delusion. He indicated his children avoid him because he "freaks out." He has poor interest and energy and sometimes thinks of suicide. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds a 100 percent evaluation is warranted. The United States Court of Appeals for Veterans Claims (Court) has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130" indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). In this case the record has demonstrated at least suicidal thoughts as demonstrated in the April 2011 and June 2011 VA treatment records demonstrating a phone call to the suicide line and psychiatrist noting the suicidal thoughts. Furthermore, during the April 2014 VA examination the Veteran reported he has poor interest and energy and sometimes thinks of suicide. In addition to the suicidal thoughts the Board finds there is evidence of persistent delusions or hallucinations. Notably since at least 2003 the Veteran has reported a reoccurring hallucination involving a former first sergeant following him. The January 2003, March 2003, and April 2010 VA treatment records supports evidence of persistent delusions or hallucinations. In fact, the April 2010 VA treatment records noted the Veteran had chronic hallucinations or delusions. Furthermore, during the April 2014 VA examination, the Veteran continued to report the same reoccurring delusion and he indicated he has nightmares and delusions about his former first sergeant being out to get him. Also, he reported this delusion has resulted in difficulty sleeping and problems at his job. Furthermore, during the October 2021 Board hearing the Veteran's spouse indicated the Veteran doesn't change clothes at times and half the time he does not eat or sleep as he would tell her someone is outside and trying to get him. Therefore, holistically examining the severity and frequency of the Veteran's symptoms, the Board finds the evidence does demonstrate total occupational and social impairment. Accordingly, for the appeal period prior to February 2015, a 100 percent evaluation for the Veteran's PTSD is warranted. 2. Entitlement to a TDIU The Veteran contends a TDIU is warranted. However, the Board finds the issue is moot. The 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 schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C.A. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C.A. § 1114 (s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Notably, such a scenario is not present here, as the primary basis for a grant of TDIU would be the Veteran's service-connected PTSD and as a result of this decision, the Veteran will be receiving a 100 percent rating for the entire appeal period. For the period on appeal the Veteran's only other compensable service-connected disabilities are degenerative arthritis evaluated at 10 percent and ruptured right ankle evaluated at 10 percent which would not be enough on its own to be eligible for schedular TDIU under 38 C.F.R. § 4.16(a). Accordingly, the Board finds that the issue of entitlement to a TDIU is moot and the claim is dismissed. Bradley, 22 Vet. App. at 280; Buie, 24 Vet. App. at 248. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget 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.