Citation Nr: 18160366
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 16-57 732
DATE:	December 26, 2018
ORDER
Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefit.
The appeal for entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed.
FINDINGS OF FACT
1. Resolving reasonable doubt in favor of the Veteran, his PTSD has resulted in symptoms that more nearly approximate total occupational and social impairment.
2. As a 100 percent schedular rating is assigned for PTSD, and as the evidence does not support entitlement to a TDIU due to any other service-connected disability, there remain no questions of law or fact to be decided regarding TDIU.
CONCLUSIONS OF LAW
1. Resolving any reasonable doubt in the Veteran’s favor, for the entire period on appeal, the criteria for disability rating of 100 percent for PTSD are approximated.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.
2. Entitlement to a TDIU rating is dismissed as moot.  38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.101.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from August 1983 to December 1988.
1. Entitlement to a rating in excess of 70 percent for PTSD.
Disability ratings are based on the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id. 
Although the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994), 38 C.F.R. § 4.1.  In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).  
The Veteran is currently assigned a 70 percent rating for his service-connected PTSD pursuant to Diagnostic Code (DC) 9411, which provides for a 70 percent rating where 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 inability to establish and maintain effective relationships.  38 C.F.R. § 4.130, DC 9411.  A 100 percent rating is 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. Id.
A Veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).  The factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme, but should also be based on all symptoms affecting a veteran’s level of occupational and social impairment.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).
After review of the record, for reasons set forth below and resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of his service-connected PTSD have worsened over the course of the appeal and are consistent with, and more nearly approximate, the criteria for a 100 percent rating.
Review of the record shows that on a VA examination in July 2013, the diagnoses included PTSD and major depressive disorder (MDD), recurrent, and the examiner noted it was not possible to differentiate the symptoms attributable to each diagnosis because there was too much overlap of symptoms between PTSD and depression.  He had been with his wife for 20 years, described his marriage as strong, and indicated they were good friends and supportive of each other.  When he was not at work, he stayed at home and felt sorry for himself and did not get out much.  His main hobby was bicycling.  He reported having 23 jobs since service, and had never been fired, but generally left the job because he believed he had been bullied or victimized.  Symptoms attributed to his PTSD included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation.
Received from the Veteran in August 2013 was a formal claim for a TDIU rating in which he claimed his PTSD prevented him from securing or following any substantially gainful employment, and he last worked full time in August 2013. 
VA treatment records showed that in November 2013, the Veteran reported he was not doing well, had lost 3 jobs in the past year, and could not hold a job anymore.  He regretted quitting his last job but was having the same pattern of not standing up to bullies when confronted.  He felt overwhelmed, had worse anxiety and panic attacks, wanted to be left alone, was isolative, and could not leave home or talk to people.  He denied suicidal or homicidal ideation, or violence.  He had visited the emergency room several times for SI and panic attacks.  On mental status examination he was observed to be well groomed, in moderate distress, angry, somewhat grandiose but cooperative, anxious, and depressed; had fair to good insight, but poor judgement; and was vague about suicidal ideation.  It was noted that he had nightmares, overall sleep problems, difficulty concentrating, mood swings, and anger issues, and was assessed as at a moderate to high risk for self-harm.  He had good social support from his wife.  The diagnoses included PTSD; MDD, recurrent, moderate; social phobia; and panic disorder with agoraphobia.
On a VA examination in March 2014, the Veteran reported his PTSD prevented him from succeeding in life, despite being intelligent and not lazy.  The examiner noted elements of self-defeating personality traits, and indicated that it appeared that due to his PTSD, the Veteran would have a difficult time working with others, as he usually found himself in a victim role and felt bullied by others.  The examiner noted the Veteran would have a better chance of maintaining a job if he were to work by himself, and opined that his PTSD might result in reduced reliability and productivity but his PTSD by itself did not render him unable to secure and maintain substantially gainful employment.
On a VA examination in September 2015, the diagnoses included PTSD and unspecified personality disorder with self-defeating personality traits.  The Veteran reported getting along well with his wife, having regular contact with his mother, and no contact with his brothers and sister.  The Veteran reported they were cautious about making friends as they had been harmed by people in the past, and they were home bodies.  He reported he mostly watched television.  He was unemployed since August 2013 and reported having 26 jobs in 26 years.  He reported many of the jobs were in sales, but he did not have the confidence to work in sales anymore.  He claimed he was hassled by co-workers, got blamed, and became a scapegoat because he was different and they decided he was the bad guy.  Symptoms attributed to his PTSD included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation.  He reported that when dealing with anxiety or when confronted, his brain freezes.
A July 2016 VA examination in July 2016 resulted in diagnoses of PTSD and narcissistic personality disorder.  The examiner found the Veteran was totally impaired occupationally and socially when the symptoms and belief systems of his personality disorder are considered, but noted his personality disorder did not meet the criteria for a service-connected disability.  The Veteran described his marriage as solid, but not without trials and tribulations.  He was unemployed, last worked in 2013 (when he was fired from a sales job due to having walked off the job after being hassled and humiliated), and on a typical day stayed home and watched television.  He had 25 jobs since service and tried to make a career out of them but was singled out and made to leave the job.  His PTSD symptoms include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty understanding complex commands, inability to establish or maintain effective relationships, impaired impulse control, and neglect of personal appearance and hygiene.  He described periodic suicidal thoughts but would never kill himself because of his wife and child.  He believed he was constantly mislabeled as narcissistic and focused on how people are constantly against him.  The examiner noted that the Veteran lacked insight into his condition and was adamant in trying to prove he does not have a narcissistic personality disorder.
In a mental status report dated in January 2016, in which the Veteran was referred for a psychological evaluation in conjunction with his claim for Social Security Administration disability benefits, his chief complaints included severe PTSD, major depressive disorder, anxiety, anger/rage issues, and being frequently suicidal.  He was appropriately groomed and cooperative.  With regard to his current mental health symptoms, he reported he could not leave the house, could not talk to anybody, and got so anxious sometimes he could not make a phone call.  He could not concentrate, at times could not remember anything and he became suicidal.  He reported rage issues, including events of blind rage where he beat people up and did not remember it.  He was hypervigilant.  He reported daily suicidal ideation and one incident where he put a gun in his mouth but did not pull the trigger, reporting his wife and daughter kept him around, but he thought about wanting a there to be a disaster to take them all out.  
On examination, he was found to be overbearing, agitated, angry, upset, and resentful, and he reported having two emotions left – anger and despair.  He denied hallucinations, and his thought content contained no overt delusions, but he focused on all the injustices against him.  His thought process was organized and logical, and his memory was grossly intact.  His insight and judgment were fair.  
He was able to handle some of his activities of daily living, but his wife helped him keep his calendar straight, and when he was depressed he could go weeks without showering.  With regard to social functioning, the Veteran was able to relate in an adequate manner, and described his relations with supervisors, coworkers, and others as variable.  He demonstrated a capacity to understand, remember, and perform simple and moderately difficult tasks, and appeared to have moderate impairment in his ability to maintain a sufficient level of concentration, persistence, and pace, to do basic and complex work in an environment that his health condition would allow due to his mood lability and tangential thought process.  He had difficulty adequately communicating and appeared to have a moderate impairment in his ability to appropriately interact with supervisors and co-workers due to his mood liability and anger management issue.  Diagnoses included severe MDD and PTSD.
VA treatment records showed that in December 2015, the Veteran reported road rage incidents and having a physical confrontation after one incident.  In January 2016, he was brought to the emergency room by his wife, who was afraid he might harm a person he had conflict with.  He had a therapy dog, and the former owner of the dog accused him of overfeeding and threatened to have dog removed.   He broke down and cried uncontrollably and had thoughts of killing that person, who threatened to take his dog away, with a gun.  He also had suicidal ideation.  He was ble to stop himself from driving to her house to confront her because he knew no good would come of it, but did not know if he could his anger much longer.  
At admission he was guarded, suspicious, dysphoric, had a restricted affect, his thought process and content were affected, and he had poor insight and judgement, and paranoid thoughts the world was out to get him.  Once he was admitted, his suicidal and homicidal ideation quickly resolved and he gradually responded to the course of care.  His anger and irritation decreased, and he became future oriented and requested a supportive letter to assist in keeping the therapy dog.  
He was again admitted to the ER in May 2016, after becoming intoxicated while celebrating his wedding anniversary and making threats.  His wife had brought him in concerned he was barely contained and more depressed lately, his PTSD was getting worse, and he was not acting like himself.  He was having spells of anger, depression, anxiety, and panic attacks, and felt a loss of control.  He was having thoughts of self harm and harm to others, but with no plan or intent.  He denied knowledge of why he was admitted, and denied suicidal and homicidal ideation or making threatening statements.  During his admission, he made jokes, but quickly switched to angry and argumentative demeanor.  His mood was irritable and labile, his thoughts liner and perseverative, and he was focused on wanting off the unit.  He was responsive to the course of treatment and medication, his mood improved, and his suicidal/homicidal ideation rapidly resolved.  He became future oriented to being discharged home to his family, who were a protective factor.  
VA treatment records showed that in July 2016, the Veteran was seen for a mental health consultation, and it was noted that his demeanor was angry and loud, and was thrashing his arms and hands at times, and calm/cooperative at other times.  His mood was congruent with an angry affect.  He denied acute suicidal or homicidal ideation, and stated that at times he had thoughts of suicide when frustrated and exhibited impulsive behavior.  His support system was his wife, daughter and dog.  His cognitive functioning and memory were grossly intact, judgment was fair, and insight was poor.  He was upset and angry at the narcissistic personality disorder diagnosis.  It was noted he made multiple complaints against mental health providers and wanted to dispute his diagnosis. 
In a November 2017 statement, the Veteran’s wife, C.S., indicated she had to remind the Veteran daily to take his medication and to eat.  He constantly struggled to process his thoughts and control his emotions.  She reported his thoughts were foggy and he struggled to concentrate.  She reported an incident where the Veteran could not express himself and he got very upset and started cussing and yelling at a laboratory technician.  She reported that every situation and incident were more intense to the Veteran than the way a normal person would see things.  She had to put him in the hospital a few times for fear he was going to hurt someone or himself.  She reported she takes care of everything because the Veteran cannot handle anything because the smallest things upset and frustrate him.  
In a November 2017 statement, the Veteran’s friend, T.V., noted the Veteran’s daily struggles with memory loss, isolation, concentration, motivation, depression and mood swings.  T.V. indicated the Veteran forgets conversations that they have had often so they end up repeating the same discussions.  T.V. did not see the Veteran often because he stays in the house all the time.” He doesn’t ever want to leave his house and he doesn’t want company most of the time.” The Veteran is described in this statement on edge all the time. Mr. [redacted] has witnessed the Veteran just get up in the middle of something and just leave without really saying why. The Veteran. gives off body language like he doesn’t seem to care if he is alive or not. Mr. [redacted] is concerned with how serious the isolation has become because he is concerned for the Veteran and the severity of his depression - “I do worry about [redacted] sometimes and wonder if he would try to harm himself.”  
In February 2018, a private doctor of psychology, Dr. W. examined the Veteran, reviewed his records, completed a DBQ (disability benefits questionnaire), and prepared a written report.  Dr. W. diagnosed PTSD, and checked the box indicating that the Veteran’s level of impairment with regard to all mental disorders was best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  Dr. W. noted the Veteran had a strained relationship with his wife and daughter, had a history of social anxiety, got easily agitated around people, lacked intimacy, was hypervigilant, easily started, isolates, was withdrawn, avoided crowds, and had diminished participation in all social activities.  He had chronic sleep impairment, and his mind raced with anxiety, stress, and worry.  He had not been able to maintain gainful employment since 2003, and last worked in 2013 due to his mental health decline.  
The symptoms associated with PTSD included 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, mild memory loss, impairment of memory, flattened affect, problems with speech content, difficulty understanding complex commands, difficulty adapting to stressful circumstances, inability to establish and maintain effective work and social relationships, suicidal and homicidal ideation, obsessional rituals, impaired impulse control, grossly inappropriate behavior, persistent danger of hurting self or others, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living.  Dr. W. opined that the Veteran’s PTSD continues uninterrupted with increased severity enough to disable and prevent him from substantial gainful employment, reportedly since at least 2003 up to the date of claim (August 2013) through the present. 
The Veteran also submitted a report from a vocational expert, Dr. B., who opined that the Veteran is totally and permanently precluded from performing, work at a substantial gainful level due to the severity of his service connected PTSD and left knee.  Dr. B. indicated that the Veteran’s anger and rage episodes and inability to tolerate stress would be severe enough to prevent his prior work or any other work.  
Private records were submitted recently, in conjunction with a request that the Veteran’s appeal be advanced on the docket, based on his high risk for suicide, which showed that in August 2018, he was brought by police to the emergency room after he had called the suicide hotline and made a suicidal statement.  It was noted that he had a gun in the house.  He reported he was stressed out and had called the hotline to ventilate, and the next thing he knew, the police were at his door.  He reported it was an embarrassing situation where his neighbors saw him on the ground, and after admission reported he was no longer feeling suicidal.  He reported he had been depressed the last 7 to 10 years, and had a close call 3 weeks prior where he tried to hurt himself.  It was noted he seemed to be dramatic in presentation, personality issues were noted, and he seemed to be attention seeking at times.  Mental status examination was unremarkable, and he was to resume his VA outpatient psychiatric treatment.  The diagnoses included MDD, recurrent, severe; PTSD; and personality disorder unspecified.
After a careful review of the evidence, both lay and medical, the Board finds that the evidence is conflicting as to the level of severity of the Veteran’s PTSD.  Initially, the Board notes that the Veteran was diagnosed with other nonservice-connected psychiatric disorders, including personality disorder and MDD.  The use of manifestations not resulting from service-connected disease or injury is to be avoided when establishing the service-connected disability evaluation.  38 C.F.R. § 4.14.  However, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to a service-connected disability.  Mittleider v. West, 11 Vet. App. 181 (1998).  While the VA examiners in 2015 and 2016 noted it was possible to differentiate the symptoms attributable to PTSD and personality disorder, other VA examiners and VA treatment records indicated it was not possible to differentiate the symptoms attributable to the Veteran’s psychiatric diagnoses.  Given that it appears that his other psychiatric symptoms overlap his PTSD symptoms, and it would be difficult to distinguish between these symptoms, the Board will consider all of the Veteran’s psychiatric symptoms as related to his service-connected PTSD.  Id.
Based on the foregoing, the Board resolves all doubt in the Veteran’s favor to find that his PTSD symptoms more nearly approximate total occupational and social impairment.  Throughout the period on appeal, his PTSD was manifested primarily by ongoing symptoms of depression, anxiety, panic attacks, suspiciousness, sleep impairment, impaired judgment, disturbances of mood and motivation, suicidal ideation, impaired impulse control, difficulty in adapting to stressful circumstances, and problems with establishing and maintaining effective relationships.  Although the competent medical evidence does not show symptomatology such as gross impairment in thought processes or communication; persistent delusions or hallucinations; disorientation to time and place; memory loss for names of close relatives, own occupation or name, the symptoms noted in the rating schedule 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 disability rating. Mauerhan, supra. 
Further, the evidence is at least in equipoise as to whether the Veteran experienced more severe symptoms including grossly inappropriate behavior, persistent danger of hurting self or others, and intermittent inability to perform activities of daily living, which more nearly approximate a total occupational and social impairment.  In this regard, although the Veteran continues to live with and receive support from his wife, the record shows he has had several emergency room admissions, reported episodes of road rage and ongoing suicidal and homicidal ideation, and has had periods of neglecting his hygiene.  Although some of the medical evidence describes perhaps a “milder” social impairment due to the Veteran’s PTSD, the Board finds that his lay assertions, his wife’s statement, and his periodic treatment records are of high probative value to support that his symptoms more nearly approximate a total occupational and social impairment.  Even though not all the listed symptoms compatible with a 100 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 100 percent rating are demonstrated in the record.  Lastly, the Board notes that the competent medical evidence shows that the Veteran was unable to hold any gainful employment directly as a result of his service-connected PTSD.
2. Entitlement to a TDIU rating.
VA will grant a TDIU when the service connected disabilities are rated less than total, but the Veteran is precluded, by reason of his service connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  In this case, as a TDIU can only be awarded in cases where the schedular rating is less than total, there is no basis for awarding a TDIU. 38 C.F.R. § 4.16(a).
The Board is cognizant of Bradley v. Peake, 22 Vet. App. 280 (2008), in which the United States Court of Appeals for Veterans Claims (Court) held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation.  In Bradley, the Court found that a TDIU rating was warranted, in addition to a schedular 100 percent evaluation, where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect.  Under those circumstances, there was no “duplicate counting of disabilities.”  Id.  Here, however, the Veteran’s service-connected PTSD is rated as 100 percent disabling, and his other service-connected disability is left knee retropatellar arthralgia, which has been rated at 10 percent since 1996, which does not meet the statutory requirements to form the basis for an award of special monthly compensation.  To also award a separate TDIU rating in addition to the schedular 100 percent rating based on the service-connected PTSD would result in duplicate counting of the disability.  The award of the total schedular rating effectively creates a situation 


(CONTINUED ON NEXT PAGE)
where there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed.  In such an instance, dismissal of the TDIU issue is appropriate.  38 U.S.C. § 7105(d).
 
THERESA M. CATINO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Casula, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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