Citation Nr: 23040705 Decision Date: 07/26/23 Archive Date: 07/26/23 DOCKET NO. 19-34 304 DATE: July 26, 2023 ORDER Effective December 17, 2010, entitlement to an initial evaluation of 100 percent for service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed as moot. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's service-connected psychiatric disorder manifested in total occupational and social impairment since December 17, 2010. CONCLUSION OF LAW The criteria for an initial disability rating of 100 percent for PTSD have been met, and entitlement to a TDIU is rendered moot. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.16, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1989 to February 1994. By way of background, the Veteran was originally granted entitlement to service connection for PTSD in a November 2012 rating decision, and assigned an initial 50 percent rating effective December 17, 2010. Importantly, the Veteran filed a Statement in Support of Claim within one year, in September 2013, specifically disagreeing with the assigned initial rating, and stating that he was unable to work a job because of his PTSD, thereby raising entitlement to a TDIU. It appears that the agency of original jurisdiction (AOJ) overlooked this disagreement with the assigned initial rating, and instead issued another rating decision in September 2014 raising the rating for PTSD from 50 to 70 percent, effective May 2, 2014, but denying entitlement to a TDIU. Indeed, the AOJ in that rating decision interpreted the Veteran's September 2013 disagreement with the November 2012 rating decision, as an original claim for increase. In June 2015, the Veteran duly filed another notice of disagreement with the September 2014 rating decision, noting that his PTSD rendered him completely unemployable, and that he believed he was entitled to a 100 percent rating or TDIU. The AOJ issued a third rating decision in June 2017, this time increasing the Veteran's PTSD rating to 100 percent, effective April 13, 2017. The AOJ notified the Veteran of this award in a July 5, 2017 letter, and informed that if the Veteran disagreed, he should file VA Form 21-0958, Notice of Disagreement, to initiate an appeal. On the same day, the AOJ issued a Statement of the Case adjudicating the issues of entitlement to a rating in excess of 70 percent prior to April 13, 2017, and entitlement to a TDIU prior to April 13, 2017. The SOC noted the date of claim to be September 5, 2013, and not the date corresponding to date the Veteran filed his original claim for service connection, December 17, 2010. From the way this issue was characterized on the SOC, and from the AOJ's recognition of September 2013 as the date of claim, it is clear the AOJ did not consider the issue of whether entitlement to a higher initial rating (to include higher than 50 percent) was warranted for the time period from December 17, 2010. More than 60 days after the issuance of the SOC, on the same day in November 2017, the Veteran filed both a VA Form 9, Appeal to the Board of Veterans' Appeals, and a VA Form 21-0958, Notice of Disagreement. On both forms, the Veteran again argued he has been totally disabled for all times he has been service-connected. The AOJ rejected the VA Form 9 as untimely in a November 30, 2017 letter, but accepted the November 2017 Notice of Disagreement, insofar as it disagreed with assigned effective date for the 100 percent rating granted in the June 2017 rating decision. Another SOC was issued in September 2019 addressing the issue of entitlement to an effective date prior to April 13, 2017 for the assignment of a 100 percent rating for PTSD, and the Veteran filed a timely VA Form 9 perfecting this appeal to the Board. Because the Veteran clearly disagreed with the assigned initial rating for PTSD stemming from the original November 2012 rating decision, and that matter was not the subject of the July 2017 Statement of the Case, it remained pending. Arguably, the issue was addressed in the September 2019 SOC, which determined that the medical evidence of record showed an increase to 100 percent was warranted on April 13, 2017, but not earlier. Given this procedural background, the Board will find that the propriety of the initial rating for the Veteran's service-connected PTSD remains at issue, and will recharacterize the issue on appeal accordingly. Any failure on the part of VA to fulfill its duty to notify or assist during the pendency of this appeal is rendered moot by the fact that that the Board is awarding the full benefit sought, a 100 percent schedular rating for PTSD, effective December 17, 2010. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides, in pertinent part, the following ratings for psychiatric disabilities: A 50 percent rating is warranted for 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; difficulty in establishing and maintaining 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 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. Id. 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; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation under the general rating formula, the primary consideration of the Board of Veterans' Appeals (Board) is a Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). A Veteran may only qualify for a given disability rating under the General Rating Formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id at 117-18. The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Vazquez-Claudio, 713 F.3d at 117; 38 C.F.R. § 4.130. The Veteran has undergone several VA PTSD examinations during the period on appeal. In connection with his December 2010 claim for service connection, the Veteran underwent a VA PTSD examination in May 2012 during which the VA examiner noted the Veteran's PTSD diagnosis. The examiner noted that the Veteran had been hospitalized in 2003 after a suicide attempt. The examiner reported that symptoms for VA rating purposes included depressed mood; anxiety; chronic sleep impairment; flattened affect; disturbances of motivation and mood; and suicidal ideation. The examiner opined that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. See May 2012 VA examination report. The Veteran was afforded another VA PTSD examination in May 2014 during which the examiner confirmed the Veteran's PTSD diagnosis. The examiner noted the Veteran's report of only sleeping two hours at a time and having intrusive thoughts; that he typically sits alone, has difficulty relating to others, and has no close friends. The examiner reported that the Veteran has anger and irritability, avoidance behaviors, hypervigilance, and exaggerated startle. The examiner noted that the Veteran reported paranoia, difficulty with memories, and depressed mood; and that he has had thoughts of suicide, that he reported that in 2003 he took a razor and sliced his throat, and that the Veteran denied current SI/HI at the time of interview. For VA rating purposes, the VA examiner reported symptoms including depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; and suicidal ideation. Based on the examination, the VA examiner opined that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. See May 2014 VA examination report. The Veteran was again afforded a VA PTSD examination in April 2017 during which the VA examiner noted the Veteran's report that he was currently living in a tent on his mother's property, and his explanation that he and his mother were in an argument which resulted in her calling the police and the Veteran being hospitalized on a mandatory two-day hold. The examiner noted the Veteran's description of himself as generally isolated with minimal interpersonal interactions or support and his report that he has a long history of several acute crisis hospitalizations. For VA rating purposes, the VA examiner reported symptoms including anxiety; suspiciousness; chronic sleep impairment; circumstantial, circumlocutory, or stereotyped speech; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; and persistent delusions or hallucinations. The examiner observed that the Veteran demonstrated some grandiose thinking and alluded to some delusions beliefs that had been expressed and documented in historical service encounters; and that he was alert and oriented, he did not evince any disturbances in concentration, memory, or behavior, but his insight and judgment were estimated as poor. The VA examiner opined that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family, relations, judgment, thinking, and/or mood. See April 2017 VA examination report. A review of the Veteran's record reveals an incident in which the Veteran reported police were waiting on him outside a club and used a belt to wrap around his upper arm. See November 2010 VA treatment records. In a September 2013 psychiatry attending note, the Veteran's symptoms were noted to include avoidance, isolation, inability to recall important aspects of events, detachment from others, emotional numbing, sense of foreshortened future, irritability, poor concentration, exaggerated startle response, depressed and elevated mood, anhedonia, indecisiveness, inability to sleep for several days, rages, and extreme irritability. The psychiatrist reported that the Veteran was hypervigilant, dysphoric, and tearful; exhibited slight lability and pressured speech at times; and expressed a history of persecution and grandiosity. She noted that the Veteran's remote and recent memory were difficult to assess as tangential at times; his judgment and insight were grossly impaired; and he denied current SI/HI but stated he wants to kill himself when his parents die. The psychiatrist reported that the Veteran denies psychosis but remains psychotic. See September 2013 VA treatment records. In October 2013, the Veteran reported that he is not able to hold down a job; he isolates himself at home; and he socializes only with family. The Veteran was noted to be angry and mistrustful. See October 2013 VA treatment records In support of his claim, the Veteran submitted a statement written by L.M., M.D., in which she noted routine contact since June 2002/2003 for MH; and noted diagnoses including PTSD/Psychosis NOS/Depression. Dr. L.M. reported that the Veteran's symptoms included sleep disturbance; difficulty concentrating or thinking; general persistent anxiety; apprehensive expectation; vigilance and scanning; persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity, or situation; recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror, and sense of impending doom occurring on the average of at least once a week; recurrent obsessions or compulsions which are a source of marked distress; and recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress. Dr. L.M. reported extreme limitations caused by psychiatric condition including restriction of activities of daily living and difficulty in maintaining social functioning. Dr. L.M. also reported that the Veteran had deficiencies of concentration, persistence, or pace resulting in frequent failure to complete tasks in a timely manner in work settings or elsewhere; repeated episodes of deterioration or decompensation in work or work-like settings which cause the Veteran to withdraw from the situation or experience exacerbation of signs and symptoms, which may include deterioration of adaptive functioning; and complete inability to function independently outside the area of the Veteran's home due to panic attacks. With respect to work limitations related to his psychiatric state, the doctor reported that the Veteran was extremely or markedly impaired, and that employment was not recommended. See October 2015 Third Party Correspondence (statement dated October 2013). In a March 2015 statement, the Veteran's sibling, W.A.C., wrote that the Veteran had been mentally ill for around 15 years, and that he lives with their 77-year-old mother. W.A.C. stated that the Veteran often makes threats to his mother and anyone else who 'did this to him,' including law enforcement, friends, family, the US Government, etc. W.A.C. highlighted the presence of several delusional thoughts. See October 2015 lay statement. The record also includes an Application for Involuntary Emergency Hospitalization for Mental Illness and an Order of Detention obtained in March 2015, along with VA treatment records regarding an inpatient mental health stay. See March 2015 Court Documents; see also March 2015 VA treatment records. The Board finds that, throughout the appeal period, the record is replete with notes from mental health providers describing the Veteran's symptomatology. The Veteran's reported symptoms are consistent and continuous, with various ebbs and flows regarding the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. Finally, a June 2015 Social Security Administration decision, received in November 2017, found the Veteran is disabled due to his psychiatric disability as of March 31, 2006. While the Board is not bound by determinations of other Federal agencies, the Board finds the determination, i.e., the Veteran's psychiatric disability results in impairment, probative as to the severity of his psychiatric disability. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (holding that Social Security Administration determinations are not controlling for VA purposes). Given the evidence above, to specifically include the Veteran's records of ongoing care throughout the appeal period, the Board finds that the most probative evidence of record shows the Veteran's service-connected disability causes total occupational and social impairment. Therefore, a 100 percent rating for service-connected PTSD is warranted for the entire period on appeal, effective December 17, 2010. When entitlement to a TDIU is raised during an appeal for an increased rating, it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In this situation, the claim for TDIU has the same appeal period as that of the increased rating claim for PTSD. However, with the award of a total schedular rating for PTSD granted herein for the entire period on appeal, and the fact that the Veteran is not in receipt of service connection for any other disability, the Veteran's parallel claim for entitlement to a TDIU based on the disabling effects of PTSD is rendered moot and is accordingly dismissed. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.