Citation Nr: 23051110 Decision Date: 09/14/23 Archive Date: 09/14/23 DOCKET NO. 20-21 133 DATE: September 14, 2023 ORDER Prior to July 26, 2021, entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. From July 26, 2021, a disability rating of 100 percent for PTSD is granted, subject to the laws and regulations governing monetary benefits. From July 26, 2021, entitlement to a total disability rating based on individual unemployability (TDIU) is moot. REMANDED Prior to July 26, 2021, entitlement to TDIU on an extraschedular basis is remanded. FINDINGS OF FACT 1. Prior to July 26, 2021, the Veteran's PTSD symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity. His symptoms were not characterized by occupational and social impairment with deficiencies in most areas. 2. From July 26, 2021, the Veteran's PTSD symptoms more nearly approximated total occupational and social impairment. 3. From July 26, 2021, the Veteran has been awarded a 100 percent disability rating for PTSD; therefore, the claim for TDIU is moot. CONCLUSIONS OF LAW 1. Prior to July 26, 2021, the criteria for an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code (DC) 9411, General Rating Formula for Mental Disorders. 2. From July 26, 2021, the criteria for a disability rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code (DC) 9411, General Rating Formula for Mental Disorders. 3. From July 26, 2021, the issue of entitlement to TDIU is moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1979 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement in August 2019. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. 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. 1. Prior to July 26, 2021, entitlement to an initial disability rating in excess of 50 percent for PTSD is denied. 2. From July 26, 2021, a disability rating of 100 percent for PTSD is granted. The Veteran contended in the August 2019 notice of disagreement that he is entitled to a 100 percent disability rating for his PTSD, or a 70 percent disability rating and TDIU. Legal Criteria Under the General Formula for Mental Disorders (General 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, 114-18 (Fed. Cir. 2013). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. Factual Background Prior to July 26, 2021 The Veteran is currently service connected for PTSD at a 50 percent disability rating effective July 25, 2017 under DC 9411. 38 C.F.R. § 4.130; DC 9411. The Veteran was afforded a VA examination in November 2018. The examiner stated that the Veteran had more than one mental health disorder diagnosed. The Veteran had PTSD and bipolar disorder. Furthermore, the examiner explained it was possible to differentiate which symptoms were attributable to each mental disorder diagnosis. Specifically, the examiner observed that the symptoms that were solely attributable to bipolar disorder were reported manic episodes involving decreased need for sleep lasting approximately a week at a time, grandiosity, distractibility, increased goal directed activity, engaging in activities with a high potential for painful consequences, pressured speech, major depressive episodes, difficulty sleeping, difficulty concentrating, anhedonia, low energy, feelings of worthlessness, low appetite, and psychomotor retardation. However, for occupational and social impairment, the examiner stated that it was not possible to differentiate which impairment is caused by each mental disorder. The VA examiner concluded that the Veteran had 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. At the time of the examination, the Veteran was in a dating relationship with a partner for two years and had a good relationship with his partner and children. The Veteran also had about five close friends. Furthermore, the Veteran had been working as a taxi driver, but reported that he missed the entire last two weeks of work because of feeling depressed and low motivation. The Veteran's symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or a work-like setting. The Veteran arrived on time to the examination, was casually dressed, and neatly groomed. His mood and affect were mildly depressed during the examiner's interview of him. Several times, the Veteran appeared to become overwhelmed while discussing past traumatic events. The examiner noted that "empathic support" was provided and that the Veteran took "several breaks" during the examination. The VA examiner also stated that the Veteran reported a history of past heroin use consistent with Opiod use disorder. At the time of the examination, the Veteran had last used heroin a month prior. During the examination, the Veteran also endorsed a history of alcohol use consistent with alcohol use disorder. Furthermore, during the November 2018 VA examination, the Veteran reported re-experiencing, avoidance, negative alterations in cognition and mood, and hyper-arousal symptoms. The Veteran also described multiple manic and major depressive episodes in the past. During the manic episodes, the Veteran experienced decreased sleep lasting a week at a time, grandiosity, distractibility, increased goal directed activity, engaging in activities with a high potential for painful consequences and pressured speech. During the depressive episodes, the Veteran reported feeling depressed almost every day for all day. Moreover, the Veteran endorsed difficulty sleeping, difficulty concentrating, anhedonia, low energy, feelings of worthlessness, low appetite, and psychomotor retardation. Finally, the Veteran denied suicidal or homicidal ideation. The Veteran was also afforded a VA examination in May 2020. The VA examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner reported that the Veteran had increased social interactions because of getting married in September 2019. Specifically, the Veteran was mostly participating in church-related activities. The Veteran also reported that he had not worked since November 2018, explaining that he stopped work because of high levels of anxiety. The VA examiner observed that the Veteran had a 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, and difficulty adapting to stressful circumstances including work or a work like setting. During the examination, the Veteran's speech was rambling. The Veteran's mood was anxious and depressed. Furthermore, the Veteran denied suicidal and homicidal ideation, and there was no suggestion of hallucinatory activity. And there were indications of mild memory problems. The examiner also explained that the Veteran was capable of performing mildly detailed and complex tasks, and was capable of regular attendance in the workplace. The examiner also reported that the Veteran had a history of substance abuse but was not actively substances at the time of the examination. From July 26, 2021 In addition, the Veteran had a VA examination in July 2021. The VA examiner noted that in addition to PTSD, the Veteran had diagnoses of bipolar disorder, alcohol dependence, and opiod dependence. However, the examiner stated that it was not possible to differentiate the symptoms of each mental disorder diagnosis and that it was not possible to differentiate what portion of occupational and social impairment was attributable to each mental disorder. The VA examiner concluded that the Veteran had total occupational and social impairment. The examiner stated that the Veteran was married and had adult children. However, the Veteran's mental health strained his relationships with others. The examiner reported that the Veteran had an overwhelming sense of impending doom all day long. The Veteran also had extremely vivid nightmares four to five nights per week and near non-stop intrusive thoughts and flashbacks. World events also made the Veteran more hypervigilant and increased exaggerated startle response. Furthermore, the Veteran had isolative and avoidant behavior that impacted his relationships with others. The examiner further observed that the Veteran's ability to carry out daily activities had decreased, and that the Veteran could not maintain gainful employment of any type whether sedentary or not. The examiner also concluded that the Veteran could not manage his own financial affairs and that a fiduciary was "strongly recommended." Finally, the VA examiner reported the Veteran had symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; 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; impairment of short and long term memory; flattened effect; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; persistent delusions or hallucinations; and neglect of personal appearance and hygiene. Analysis Prior to July 26, 2021 As stated in the factual background section, prior to July 26, 2021, the Veteran had two VA examinations in November 2018 and May 2020. The November 2018 VA examination concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although functioning satisfactorily with normal routine behavior, self-care, and conversation. While the May 2020 VA examination concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. In the November 2018 VA examination, the examiner noted that the Veteran had a "real good" relationship with his partner and children. The Veteran also had about five close friends. Regarding occupational impairment, the examiner stated that the Veteran had been working as a taxi driver at the time of the examination, but also acknowledged that the Veteran missed the last two weeks of work because of feeling depressed and experiencing low motivation. The examiner also only endorsed one symptom that is indicative of a higher rating of 70 percent, difficulty adapting to stressful circumstances including work or a work like setting. However, the presence or absence of specific symptoms, which correspond to a particular rating are not dispositive. 38 C.F.R. § 4.130; Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Furthermore, the VA examiner attributed more serious symptoms like manic and major depressive episodes to the Veteran's bipolar disorder, not his service-connected PTSD. Therefore, the November 2018 VA examination does not indicate that the Veteran had occupational and social impairment with deficiencies in most areas (a 70 percent rating) prior to July 26, 2021. In the May 2020 VA examination, the Veteran reported increased social interaction in the context of getting married in September 2019. The Veteran participated in church-related activities with his wife. Furthermore, the examiner reported that the Veteran interacted with several friends, but not on a frequent basis. The examiner also did not report significant occupational impairment and indicated that the Veteran considered himself retired. The examiner noted that the Veteran was capable of performing mildly detailed and complex work tasks, and that the Veteran was capable of interacting with co-workers and the public in an adequate manner. Like the November 2018 VA examination, the May 2020 VA examination only endorsed one symptom that is indicative of a higher rating of 70 percent, difficulty adapting to stressful circumstances including work or a work like setting. Nonetheless, the presence or absence of specific symptoms, which correspond to a particular rating are not dispositive. 38 C.F.R. § 4.130; Mauerhan, 16 Vet. App. at 442. Thus, the May 2020 VA examination does not show that the Veteran had occupational and social impairment with deficiencies in most areas (a 70 percent rating) prior to July 26, 2021. Therefore, the evidence is against a finding that the Veteran's PTSD warrants a rating in excess of 50 percent prior to July 26, 2021. Thus, entitlement to a disability rating in excess of 50 percent for PTSD prior to July 26, 2021 is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.130. From July 26, 2021 As stated in the factual background, the Veteran was afforded a VA examination on July 26, 2021. The examiner concluded that the Veteran had total occupational and social impairment. Regarding social impairment, the examiner noted that the Veteran's mental health impacted and strained relationships with others. For occupational impairment, the examiner observed that the Veteran could not maintain gainful employment of any type whether sedentary or not, because of his service-connected PTSD. Furthermore, the Veteran's social and occupational impairment was at the point that the examiner stated that the Veteran was incapable of managing his financial affairs and that a fiduciary was "strongly recommended." The examiner also indicated that the Veteran had persistent delusions or hallucinations, which is a symptom indicative of a 100 percent disability rating. Based on the foregoing, the Board finds that a disability rating of 100 percent for PTSD from the date of the VA examination, July 26, 2021, is warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.130. The record does not indicate an earlier date of entitlement for a total disability rating. The Board finds that the November 2018, May 2020, and July 2021 VA examination reports, describing the Veteran's PTSD symptoms, to be the most probative evidence of record, as the examiners reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent to observe his PTSD symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his PTSD. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Because of this, prior to July 26, 2021, a disability rating in excess of 50 percent for PTSD is not warranted. From July 26, 2021, a disability rating of 100 percent for PTSD is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The issue of entitlement to a TDIU will be addressed below. The Board is sympathetic to the Veteran's reports and understands that his disabilities have significant effects on his daily life. However, these conditions more nearly approximate the currently assigned ratings and do not warrant increases in the ratings at this time. The Board also notes that this decision does not leave the Veteran without recourse. If his disabilities should worsen in the future, the Veteran is free to file claims for increased disability ratings at that time. TDIU From July 26, 2021, entitlement to TDIU is moot. The Veteran contended in the August 2019 notice of disagreement that he is entitled to TDIU because of his service-connected PTSD. The Veteran also applied for TDIU in August 2019. Therefore, the Board will consider the Veteran's TDIU claim to be part of his PTSD increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). 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). 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). As a result of this decision, the Veteran is 100 percent disabled because of his service-connected PTSD from July 26, 2021. Therefore, the Veteran's claim for TDIU from July 26, 2021 is moot. Accordingly, the Board need not address the Veteran's TDIU claim for that time period. Entitlement to a TDIU prior to July 26, 2021 will be addressed in the remand section below. REASONS FOR REMAND Prior to July 26, 2021, entitlement to TDIU on an extraschedular basis is remanded. A remand is necessary to refer the Veteran's TDIU claim to the Director of the Compensation Service for extraschedular consideration. The Veteran is in receipt of a 100 percent disability rating for PTSD from July 26, 2021. However, the Veteran and the Veteran's representative have argued that TDIU is warranted prior to July 26, 2021. See August 2019 notice of disagreement; August 2021 representative letter. The Veteran also submitted an application for TDIU in August 2019 stating that he has not worked since October 2018 because of his service-connected PTSD. Therefore, the Board finds that the record raises the possibility that the Veteran was unemployable due to his PTSD prior to July 26, 2021. During the portion of the claims period prior to July 26, 2021, the Veteran was service connected for PTSD rated at 50 percent disabling. See July 2023 rating decision codesheet. The Veteran was not service connected for any other disabilities. Thus, the 50 percent disability rating does not meet the schedular criteria for TDIU because it is not 60 percent or greater. 38 C.F.R. § 4.16. Therefore, because the Veteran did not meet the schedular criteria for TDIU prior to July 26, 2021, the Board must remand to refer TDIU on an extraschedular basis to the Director of the Compensation Service in the first instance. See 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU prior to July 26, 2021 to the Director, Compensation Service for extraschedular consideration. J. Abrams Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brodbeck, Douglas E. 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.