Citation Nr: A25035353 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 201231-130284 DATE: April 16, 2025 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. A 100 percent disability rating for service-connected anxiety disorder and PTSD (psychiatric disability) is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed as moot. REMANDED Special monthly compensation (SMC) based on the need for regular aid and attendance of another is remanded. FINDINGS OF FACT 1. The approximate balance of the evidence supports finding the Veteran has a diagnosis of PTSD with historical records showing associated symptoms and a suspicion of the same since at least September 2017 that is related to military service. 2. The approximate balance of the evidence supports finding the Veteran's service-connected psychiatric disability has produced symptoms consistent with total occupational and social impairment throughout the appeal period. 3. Given the 100 percent rating award for psychiatric disability alone throughout the appeal period, the issue of TDIU is moot. CONCLUSIONS OF LAW 1. The criteria are met for service connection of PTSD. 38 U.S.C. §§ 1110, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303 (2025). 2. The criteria are met for a 100 percent disability rating for service-connected psychiatric disability. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (Code) 9413 (2025). 3. The criteria are met for dismissal of TDIU as moot. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 1970 to February 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision appealed by a timely December 2020 VA Form 10182 Notice of Disagreement (NOD) electing the Hearing docket. In February 2025, a hearing was held before a Veterans Law Judge (VLJ); a transcript is of record. Given the Veteran's docket election, the Board will consider the evidence of record as of the decision on appeal as well as any relevant evidence submitted within 90 days of the hearing (i.e., between February 20, 2025 and May 21, 2025). Although the post-hearing evidentiary submission window has not yet lapsed, the Board notes that the award here is a full grant of benefits sought on appeal and, therefore, any technical defect in the timing of this decision is harmless at this time. 1. Service connection for PTSD To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a pertinent event or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). In evaluating these requirements, VA must analyze all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the persuasive evidence of record is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). VA records show a long history of suspected PTSD dating back to at least September 2017 that providers have long attributed to traumatic events in service. Although the Veteran was offered a referral for psychiatric consultation, he has repeatedly declined to seek such treatment over the years. However, a January 2025 privately completed Disability Benefits Questionnaire (DBQ) submitted at the February 2025 hearing confirms a diagnosis of PTSD and the examiner at the time specifically opined that "[i]t is more likely than not that his symptoms are the result of his military service," noting that there" are no other sentinel events that would...better account for [his] diagnosis other than stressors which occurred during military service. Moreover, that same examiner confirms that he has "apparently avoided treatment for depression and PTSD for most of his life." Notably, the Veteran's reported stressor is that a fellow service member during basic training began discharging his weapon at the shooting range erratically, aiming at members of the unit-although the Veteran's statement dates this between June and August 1969, this presumably refers to 1970, as his service began in July of that year. He specifically recalls the member "aiming at [him] and firing without [being] conscious of others." He said everyone was "trying to avoid being hit." Given this event involves a personal assault in service, 38 C.F.R. § 3.304(f) allows for corroboration of the event by a broader range of evidence types, including lay statements and other indications of behavioral changes. Notably, personnel records do show that he was subject to disciplinary actions during service on multiple occasions beginning in August 1970, which does suggest just such a behavioral component. While the November 2020 VA examination report during this appeal period did not find a diagnosis of PTSD, it notably does not appear the Veteran was ever provided a specific PTSD examination, and that examiner made an unexplained finding that the Veteran did not meet Criterion A for PTSD that is afforded little probative weight given the lack of any discussion even acknowledging the Veteran's reported stressor or the clinical history of assessments specifically noting suspected PTSD. Given the above, the Board finds the approximate balance of the evidence supports finding (1) a current PTSD diagnosis, with a diagnostic history noting suspicions of the same well before the rating decision on appeal and solidly within the appeal period here; (2) a valid and verified stressor in service based on personal assault that is corroborated by the Veteran's own competent statements and personnel records showing a history of disciplinary proceedings following the period when he reports his stressor occurring; and (3) a relationship between his history of PTSD symptoms and the stressor in service. Consequently, resolving any remaining doubt in the Veteran's favor and absent any similarly compelling evidence to the contrary, the Board grants the appeal in this matter. 2. A 100 percent rating for a service-connected psychiatric disability Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration. See Fenderson v. West, 12 Vet. App, 119 (1999). Disability ratings for mental disorders are assigned pursuant to General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a maximum 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; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board notes psychiatric diagnoses other than PTSD documented in the medical evidence of record during the period on appeal, but no opinion or medical evidence clearly distinguishing between then in terms of symptoms or impairment. Therefore, the Board will consider the entire psychiatric disability picture. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (precluding the Board from distinguishing between service and nonservice-connected psychiatric disabilities for rating purposes absent clear evidence allowing such distinction). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 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 rather than solely on the examiner's assessment of the level of disability on 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 based on social impairment. 38 C.F.R. § 4.126 (b). As noted above, there is no real substantive history of clinical psychiatric treatment to draw from here, and therefore the only relevant evidence to consider here consists of a November 2020 VA examination report and the January 2025 privately completed DBQ submitted at the February 2020 hearing, along with the Veteran's competent and credible sworn testimony. On November 2020 VA examination, the Veteran said he divorced his first wife "right after [he] got back," noting they couldn't get along. He said he had been married three times, but his daughter said he had been married four times, clarifying that he was technically separated from his fourth wife. The Veteran said he had worked in administrative jobs and management positions, including as Postmaster at a college, but was fired because he was "having problems." He said he also worked as an operations manager at a hospital for ten years but was having issues with outbursts. He said he earned a bachelor's degree in business administration. He denied any prior hospitalizations for mental health reasons as well as suicidal ideation. He noted he was disciplined in service for fighting after being picked on and that he had been arrested maybe twice, once for domestic violence (which required anger management classes) and once for a white-collar crime (though he indicates those charges were dropped). His daughter added that he "gambles excessively" and he clarified that he plays slot machines and had lost money doing so, to the point of putting his family in jeopardy. His daughter said she and her sister managed some of his money. Symptoms noted on examination included anxiety, chronic sleep impairment, impaired judgment, and difficulty establishing and maintaining effective relationships. His daughter noted he was abusive when she was growing up and reported he would have "outbursts" after being "triggered by something." His ex-wife arrived at the end of the session and confirmed his anxiety, frustration, and anger. The examiner's assessment at that time was occupational and social impairment with reduced reliability and productivity (i.e., commensurate with a 50 percent rating under the relevant criteria). See 38 C.F.R. § 4.130. The January 2025 privately completed DBQ paints a different disability picture, noting diagnoses of PTSD and adjustment disorder with depression. The examiner there also notes a history of dissolved marriages in addition to being fired from his prior jobs and avoiding treatment for psychiatric symptoms. The discussion of his PTSD diagnosis notes symptoms including persistent and exaggerated negative beliefs or expectations of himself, others, or the world, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression towards people or objects, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, sleep disturbance, depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, speech that is intermittently illogical, obscure, or irrelevant, and disturbances of motivation and mood. A mental status examination at the time noted anxious mood, varied alertness, slowed thought processes, "medium" insight, poor memory, and poor to fair judgment. The examiner felt the Veteran's psychiatric disability was consistent with total occupational and social impairment. At his hearing, the Veteran clarified that the information he gave to the private examiner describes his condition since well before 2020 and long before the rating decision on appeal. Specifically, he reported anxiety attacks every day, lasting four to six hours, that can be brought on by anything, even a loud noise on television. He reported restlessness, periods of near-continuous anxiety where he cannot function (including with basic daily tasks, like shopping or cooking). His daughter recalled that, when she was little, maybe eight years old, a tire burst nearby and the Veteran suddenly "started yelling, and he punched [her] mom in the face in public." She said she helped him with his daily activities, doing most of the shopping and "pretty much everything" for him. Notably, she had to help him through the hearing and provide much of his substantive answers for him as he had a difficult time even participating. The Board finds the approximate balance of the evidence here weighs in favor of awarding a higher 100 percent rating throughout the appeal period. In so finding, the Board acknowledges that the November 2020 VA examination report indicates a much lower level of impairment than the January 2025 privately completed DBQ but, as noted above, that report failed to account for crucial elements of his psychiatric disability picture and clinical history, seemingly ruling out a PTSD diagnosis without any substantive discussion of his stressors or the history of VA records assessing suspected PTSD. Moreover, it is not lost on the Board that the Veteran has almost no history of treatment for his psychiatric disability and that the January 2025 evaluation and February 2025 hearing appear to be the first times in the record that he has spoken more frankly about his struggles. This is all the more relevant given portions of the November 2020 VA examination report appear consistent with the more serious problems endorsed in the January 2025 report and his February 2025 testimony (i.e., a history of domestic violence against his wife and children, a history of poor judgment as demonstrated by a gambling addiction that put his family in financial jeopardy, an inability to manage his own affairs independently, etc.). The VA examiner at that time did not probe those matters further or explain why they might have been discounted when assessing him at a much lower level of impairment than those types of symptoms suggest when compared to the relevant rating criteria. Consequently, the Board finds that examination report is relatively less probative and persuasive than the other evidence of record, including the January 2025 DBQ submitted during the post-hearing evidentiary window. In light of the above, the Board resolves any remaining doubt in the Veteran's favor and grants a higher 100 percent rating throughout the appeal period (i.e., from June 30, 2020). 3. TDIU is dismissed as moot Given the award of a schedular 100 percent rating based on his service-connected psychiatric disability alone throughout the appeal period, the Board finds the issue of TDIU during the appeal period is moot, as the only apparent benefit of considering that matter would be for purposes of establishing a "disability rated as total" that may make him eligible for further compensation at the statutory housebound rate under 38 U.S.C. § 1114(s) and, here, the schedular 100 percent rating for psychiatric disability alone already satisfies that portion of the relevant criteria. Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Consequently, there remains no controversy or legal or factual error ripe for consideration on appeal in this matter at this time, and it must be dismissed as moot. 38 U.S.C. § 7105(d). REASONS FOR REMAND 1. SMC based on the need for the regular aid and attendance of another is remanded As noted above, the February 2025 hearing testimony indicates the Veteran is unable to manage his money responsibly or perform certain basic functions like shopping or cooking. His daughter has also testified and reported to medical providers that the Veteran has a history of violence towards herself and prior partners. These reports reasonably raise a question as to whether the Veteran requires the aid and attendance of another person as a result of his service-connected disabilities under Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) as part and parcel of the rating appeal and, therefore, VA may directly take up that matter without the need for a formal claim. Indeed, the Agency of Original Jurisdiction (AOJ) here erred by not doing so in the first instance and, in turn, by failing to order an examination to assess his functioning in this regard. Consequently, the Board finds the matter must be remanded to correct a pre-decisional developmental error. The matters are REMANDED for the following action: Schedule an examination with an appropriate physician to clarify the impact of the Veteran's service-connected disabilities on his ability to function independently. Based on a review of the record, examination of the Veteran (including a subjective history describing the impact of his service-connected disabilities on his functioning), and any other studies deemed necessary, the examiner should describe the impact of the Veteran's service-connected disabilities on his daily functioning. Specifically, the examiner should take note of his abilities to dress or undress himself, keep himself ordinarily clean and presentable, feed himself, or attend to the wants of nature along with any incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his or her daily environment or whether he is "bedridden." For the purpose of this evaluation, "bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. The examiner should note that the Veteran need not be in constant need or aid and attendance, but only the regular need for such assistance. [CONTINUED ON NEXT PAGE]? Any opinions provided here beyond mere observations should be supported by citation to relevant findings, medical records, or other corroborative evidence. Failure to do so may further delay the claim and require additional clarification. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.