Citation Nr: 23054699 Decision Date: 10/03/23 Archive Date: 10/03/23 DOCKET NO. 19-05 226A DATE: October 3, 2023 ORDER An initial disability rating of 100 percent for service-connected posttraumatic stress disorder (PTSD), effective from December 27, 1998, onward, is granted. The claim of entitlement to a total disability rating based upon individual unemployability (TDIU) is dismissed as moot. FINDINGS OF FACT 1. The Veteran's PTSD manifested as total occupational and social impairment throughout the period on appeal. 2. The Veteran's claim for entitlement to a TDIU is predicated on the impairment caused by her service-connected PTSD; the record does not show, nor does the Veteran assert, that she was incapable of securing or following substantially gainful employment at any time during the period on appeal due to her service-connected disabilities other than PTSD. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 100 percent, from December 27, 1998, onward, for service-connected PTSD, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (DC) 9411. 2. The claim for entitlement to a TDIU is rendered moot as a result of the grant of a 100 percent disability rating for PTSD effective from December 27, 1998, and for that reason, is dismissed. 38 U.S.C. §§ 1114, 7104, 7105(d)(5); 38 C.F.R. §§ 3.105, 3.341; see also 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). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1994 to December 1998. This case is before the Board of Veterans' Appeals (Board) within the legacy system, with a complicated procedural history. Pertinent to adjudication of the claim at the instant time is that the case is within the legacy system, arising from a January 2019 Department of Veterans Affairs (VA) Regional Office (RO) rating decision, in which the RO granted an initial noncompensable rating effective from December 27, 1998, and a 70 percent rating effective from April 1, 2015. In a December 2019 rating decision, the RO increased the initial disability rating to 50 percent. In an April 2022 decision, the Board denied the Veteran's claim for increased disability ratings for PTSD both prior to April 1, 2015, and from that date onwards. The Board did so within the modernized (Appeals Modernization Act, or "AMA") system. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a December 2022 Court Order granting a Joint Motion for Remand (JMR), the Court vacated the Board's April 2022 decision, found that the Board had improperly adjudicated the claim within the AMA system, and remanded the case for further development in compliance with the directives specified in the JMR. In March 2023, the Board remanded the case back to the RO for additional development of the record pursuant to the directives specified in the JMR. Within the remand, the Board raised the issue of entitlement to a TDIU, pursuant to the terms of the JMR. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Notably, the appeal stream was docketed within the legacy system. In a separate March 2023 decision, the Board dismissed the AMA appeal stream. The case now returns to the Board within the legacy system and is ripe for adjudication. INCREASED RATING 1. Entitlement to a disability rating in excess of 50 percent for the appeal period prior to April 1, 2015, and in excess of 70 percent thereafter, for service-connected PTSD The Veteran seeks an increased disability rating for service-connected PTSD, which is currently rated as 50 percent disabling for the appeal period prior to April 1, 2015, and 70 percent disabling from April 1, 2015, onward, under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned 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 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; in difficulty establishing effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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. Id. A 100 percent rating is warranted when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. Id. Symptoms listed in the General Rating Formula serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). Rather, the rating assigned must be based on 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. 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114 (Fed. Cir. 2013). However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level. Bankhead, 29 Vet. App. at 25. While the record indeed contains VA examination findings, including from December 2015, which may well suggest that the Veteran's PTSD caused a degree of impairment less than total, the Veteran's lay reports and the buddy statements within the record tell otherwise. The Veteran bravely testified before a Veterans Law Judge with the Board not just to the details of an in-service rape, but to the debilitating symptoms which have affected her since she left service in 1998. She provided countless letters to VA in which she described, in striking detail, the horrifying impact that an in-service rape has had on her post-service life. Her story and her description of psychiatric symptoms carries total credibility and is one which she has unfortunately had to relive throughout what has surely been a frustrating appeals process. The many lay reports submitted by those around her attest to a level of impairment which often left the Veteran unable to leave home, and at times unable to leave her bed. Having conducted a thorough review of the medical and lay evidence, and with the above in mind, the Board finds that a more detailed discussion as to the unique nature of the Veteran's psychiatric symptoms, or the in-service event, would be wholly unnecessary. Given the difficulties with which the Veteran deals on a daily and hourly basis, the Board finds the Veteran's dogged pursuit of her deserved compensation commendable. See generally Veteran's lay statements and legal arguments submitted throughout the period on appeal (providing the Board with a clear picture of her factual arguments and assertions and demonstrating an intimate understanding of the substantive and procedural processes inherent to the VA appellate process). Hopefully, this decision provides the Veteran with some degree of relief. In sum, the Veteran's service-connected PTSD has caused total occupational and social impairment since she left service. A 100 percent disability rating is granted from December 27, 1998, onward. TDIU 2. Entitlement to a TDIU The Veteran contends that a TDIU is warranted from the effective date of service connection for PTSD. The United States Court of Appeals for Veterans Claims (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 entitlement to a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his or her disabilities establish entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating and has additional disability ratable at 60 percent or higher. The Court held in Buie and Bradley v. Peake, 22 Vet. App. 280, 294 (2008) that a 100 percent schedular rating does not render TDIU moot if the TDIU would assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114(s). In this case, the Veteran is in receipt of a 100 percent rating for PTSD throughout the period on appeal, and there is no service-connected disability in effect prior to the date of service connection for PTSD. Moreover, the Veteran does not argue, nor does the record show, that a TDIU is warranted based on the service-connected disabilities other than PTSD. Finally, the Veteran is already in receipt of SMC under 38 U.S.C. § 1114(s) from November 14, 2017 onward. Accordingly, assignment of a TDIU would not assist the Veteran in obtaining SMC, and for that reason, the issue of entitlement to a TDIU is in fact rendered moot throughout the period on appeal. ? In summary, the Veteran's TDIU claim is rendered moot from December 27, 1998, onward, as a result of the 100 percent disability rating assigned in this decision for service-connected PTSD. See Bradley v. Peake, 22 Vet. App. 280 (2008); 38 U.S.C. § 7104(a); 38 C.F.R. § 20.101(a). Paulette Vance Burton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.