Citation Nr: 1615151 Decision Date: 04/14/16 Archive Date: 04/26/16 DOCKET NO. 12-08 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) with depressive disorder and alcohol abuse, rated 30 percent disabling. 2. Entitlement to special monthly compensation (SMC). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD P. M. Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 until December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. On his March 2012 Appeal to the Board of Veterans Appeals (VA Form 9), the Veteran requested a hearing before a Member of the Board in connection with his claim. In October 2015, the Veteran submitted a statement that he would like to withdraw his request for a hearing before the Board. There are no other hearing requests of record. Accordingly, the Veteran's hearing request is withdrawn. See 38 C.F.R. § 20.704 (e) (2015). A claim for a total rating based on individual unemployability (TDIU) due to service connected disability is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, to the extent that the Veteran indicated that his PTSD has interfered with his ability to obtain employment and filed a claim for TIDU due to PTSD in June 2012, the Board notes that the issue of entitlement to a TDIU was bifurcated and separately adjudicated by the RO in an unappealed rating decision in July 2013. Bifurcation of a claim generally is within the Secretary's discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009). As the Veteran did not appeal this decision, further consideration by the Board of entitlement to a TDIU under Rice is not warranted. The issue of entitlement to SMC is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to July 11, 2014, the Veteran's service-connected PTSD with depression and alcohol caused occupational and social impairment with deficiencies in most areas, due to symptoms such as: impaired impulse control with unprovoked irritability and periods of violence; suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance; and reduced cognitive ability. 2. Prior to July 11, 2014, the Veteran's service-connected PTSD with depression and alcohol did not more closely reflect total occupational and social impairment. 3. As of July 11, 2014, the Veteran's service-connected PTSD with depression and alcohol abuse has manifested with symptoms that more closely reflected total social and occupational impairment. CONCLUSIONS OF LAW 1. For the period prior to July 11, 2014, the criteria for an evaluation of 70 percent for PTSD, but no higher, were more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411 (2015). 2. As of July 11, 2014, the criteria for an evaluation of 100 percent for PTSD have been more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Consequently, the following discussion will be limited to the evidence the Board finds to be relevant. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice was provided to the Veteran in a letter sent in April 2011. Accordingly, the duty to notify has been fulfilled. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the issue being decided on appeal, the evidence of record includes the Veteran's service treatment records, VA treatment records, statements from the Veteran, and multiple VA examination reports. These examinations were adequate as the findings reported were detailed, and the opinions offered were responsive to the questions posed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Entitlement to an Increased Rating for PTSD The Veteran seeks a rating in excess of 30 percent for his service-connected PTSD with depression and alcohol abuse. He contends this disorder has resulted in a higher level of social and industrial impairment due to such symptoms as a depressed mood, irritability, limited social contact, difficulty sleeping, suicidal ideation, and poor focus, concentration, and memory. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). In the instant case, the evidence indicates that the Veteran's disability has significantly changed during the appeal period and staged ratings are warranted. Particularly, the Veteran's condition is found to have worsened after he files for another increase for his condition on July 11, 2014. The Veteran's condition is rated under Diagnostic Code 9411 and utilizes the General Rating Formula for Mental Disorders. Under that code, evaluations may be assigned ranging between 0 and 100 percent. The Veteran is currently assigned a 30 percent disability rating. This evaluation is in order when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss, (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when PTSD causes 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. A 70 percent rating is assigned when PTSD causes 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 maximum 100 percent rating is assigned for PTSD that causes 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. Records from the Bryan / College Station Outpatient clinic from February 2011 state that the Veteran sought treatment at this facility after previously treating at the Houston VA Medical Center. On his initial behavioral health evaluation, the Veteran reported a history of suicide attempts, including cutting his wrists with a broken bottle in 2001 or 2002, and attempts to shoot himself (three to four years prior and another attempt a year prior to the evaluation). The Veteran noted that his previous psychiatrist wished to hospitalize him after his most recent attempt. The Veteran reported recent suicidal ideation and that he had not been taking his medication for three to four month, until the past week. Voluntary hospitalization was recommended, but the Veteran declined hospitalization at that time. He stated that he felt trapped and while he desired help for his condition he did not want to be "locked-up." In March 2011, the Veteran filed for an increased rating for his service-connected PTSD. He was also seen at the Central Texas Health Care System for a psychiatric consult at this time. He denied suicidal ideation and was determined to be a low risk for self-harm. He reported that he was "sleeping well with his medications," but also reported increased alcohol intake. In May 2011, he submitted a letter from his wife that described the worsening symptoms of his condition. The Veteran's wife stated that over the prior year the Veteran's condition had worsened, despite his medication. She reported increased nightmares, social isolation, and suicidal ideation. "I never know what I will find when I come in from work in the afternoons. Is he going to be alive or dead?... He talks about me and our family being better off without him." She indicated that he was becoming more reclusive, and was displaying less interest in being involved with his family, including his children and grandchildren. The Veteran was afforded a VA psychiatric examination in June 2011. The claims file was reviewed by the examiner in conjunction with evaluation of the Veteran. The examiner noted that the Veteran reported a "good" relationship with his wife of 30 years, and that he sees his adult children and grandchildren on occasion. He reported spending his time helping out around the house, mowing the grass, or doing other chores. He indicated that he had retired four to five years earlier. He stated that he had been experiencing some cognitive difficulties and that his wife had been helping him with his medication; however, he reported that they managed the household finances jointly and that he was generally aware of his bills and income. The Veteran reported that he had been feeling increasingly depressed over the prior three to four months with declining interest in activities and libido. He described symptoms of worthlessness and reported difficulties with concentration and focus. He did not report current suicidal ideation, but reported increased symptoms of hypervigilance and irritability. On mental status evaluation, the Veteran was noted to have a cooperative manner with thought processes that were logical and goal directed. He was oriented to person, place, and situation; however, he was a week off on the date. He was able to spell a 5-letter word forward but had difficulty spelling it backwards. His immediate retention was poor; after a 3-minute delay, the Veteran was able to recall one of three words. His mood was noted to be anxious with a congruent affect. Current homicidal and suicidal ideation, plan, and intent were denied. Judgement and insight were reported to be adequate. In September 2011, the Veteran returned to the Bryan VA OPC for a behavioral health follow up. He denied suicidal ideation and the examiner reported no signs of hallucinations or gross impairments in functioning. The Veteran apologized for missing the prior week's appointment as his fifth grandchild had been born that day. He reported significant problems with nightmares, which were occurring multiple times per week and frequently resulted in aggressive actions, such as hitting his wife, which greatly concerned him. In March 2012, the Veteran was seen for treatment with Telemental Health through the Bryan OPC. The Veteran reported that he had completed his journaling homework and that he believed the process was helping him. He stated that he had disclosed some of his work with his wife and he appreciated her support. The Veteran did not report suicidal ideation or demonstrate cognitive deficits, delusions, or hallucinations. In March 2013, the Veteran was seen for another VA examination. The examiner noted that the Veteran was diagnosed with PTSD, major depressive disorder, and alcohol abuse. The examiner indicated that the Veteran's symptoms were causing occupational and social impairment with reduced reliability and productivity. The examiner opined that the Veteran's symptoms could be differentiated and that the majority of the Veteran's symptoms were related to his alcohol consumption. The examiner noted that the Veteran's social and interpersonal functioning had worsened over the prior two years, and has led to problems, such as, being put on probation for pushing a police officer. The examiner noted that during the evaluation the Veteran's eye contact was poor, and grooming and rapport were limited. His wife answered questions and added details. His affect was noted to be restricted, irritable, and anxious. Thought processes were logical and goal directed. He did not have any delusions, or hallucinatory behavior. He reported ongoing suicidal thoughts, and an attempt to take his life by gun within past year. His wife removed guns from their home since that time. Homicidal thoughts, intent or plan were denied. There were mixed concerns regarding his judgment and the examiner noted that the Mini-Mental Status Exam indicated some responses that, if genuine, were indicative of serious dementia; however, the examiner did not note any current diagnosis that would indicate such a level of cognitive decline. On July 11, 2014, another claim for an increased rating for PTSD was received. In May 2015, the Veteran underwent another VA psychiatric evaluation. He was noted to have severe PTSD, severe Depressive disorder, and Alcohol Use disorder that was in sustained remission. The Veteran's symptoms of PTSD included: nightmares, flashbacks, lingering guilt, avoidance of things that elicit memories of Vietnam, suspiciousness, hypervigilance, increased startle response and panic attacks that are elicited by reminders of Vietnam. Additionally, the following were reported as symptoms of Depression: thoughts of hopelessness and worthlessness, low motivation, fatigue, fluctuations in eating, periods of crying, psychomotor slowing, suicidal ideation, homicidal ideation without plan or intent, neglect of hygiene, and vague audio/visual hallucinations. He reported that "I will hear things outside and sometimes I think I see them." The examiner reported that the Veteran's mental diagnoses caused total occupational and social impairment. He stated that the Veteran's PTSD and persistent depression significantly impaired his ability to obtain and maintain gainful employment, to complete work tasks in a timely and efficient manner, to remember work and personal tasks, and to establish healthy interpersonal relationships beyond his wife. With disability compensation claims, the Board is directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that for the period prior to July 11, 2014, the Veteran's condition more closely reflects the criteria for 70 percent criteria under the General Rating Formula for Mental Disorders. During this period, the Veteran's condition more closely resembles occupational and social impairment, with deficiencies in most areas. The Veteran's medical record reflect mental health symptoms that caused the following: impaired impulse control with unprovoked irritability with periods of violence; suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance; and reduced cognitive ability. Despite lacking a prior criminal history, the Veteran was placed on probation for assaulting a police officer in March 2011. His medical records reflect a suicide attempt in 2010 and periods of suicidal ideation during this period. His wife submitted statements that she was concerned about the Veteran's capacity for self-harm and that he believed that his family "would be better off without him." During the 2013 VA exam, the Veteran's grooming was noted to be limited and the examiner indicated that the Veteran's responses to aspects of the evaluation indicated severe cognitive impairment and decline. While the examiner questioned the validity of these tests, the Board notes that cognitive impairment was also noted to a lesser degree during the Veteran's June 2011 examination. To the extent that the 2013 examiner indicated the Veteran's condition was due to impairments other than his PTSD, the Board notes that the Veteran's service-connected condition as of the June 2011 rating decision has been characterized as PTSD with depressive disorder and alcohol abuse. Further, when the Board cannot differentiate between the effects of a service-connected and nonservice-connected disorder, it must attribute the effects to the service-connected disability. See Howell v. Nicholson, 19 Vet.App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability); Mittleider v. West, 11 Vet.App. 181, 182 (1998). Here, while the 2013 examiner indicates that the Veteran's conditions can be separated, he only does so amongst the conditions for which the Veteran has been granted service connection and the May 2015 examiner indicates that these conditions cannot be separated due to overlapping symptomatology. Accordingly, the Board finds that prior to July 11, 2014 the overall impairment due to the Veteran's service-connected mental condition most closely reflects the 70 percent criteria under DC 9411. However, the Board does not find that the Veteran's condition rises to the 100 percent level or more closely reflects the 100 percent criteria under Diagnostic Code 9411 prior to July 11, 2014. While the record indicates that the Veteran during this period (or immediately prior to the appeal period) endorsed suicidal ideation and was recommended for inpatient hospitalization by VA medical professionals, the Board notes that the Veterans most severe symptoms were experienced in close proximity to a lapse in the Veteran's mental health medications. The Board finds that, prior to July 11, 2014, when Veteran was regularly taking his medication; he reported symptoms that more closely reflected the 70 percent criteria under the General Rating Formula for Mental Disorders. While the Veteran was not working at this time, the evidence does not indicate that the Veteran's condition was causing total social impairment during this period. In June 2011, the Veteran reported having a relationship with his two sons and his grandchildren. This relationship was supported by his missed appointment in September 2011 due to the birth of his fifth grandchild. In March 2012, the Veteran reported involving his wife in a journaling assignment that he had completed as part of his treatment with Telemental Health. This interaction indicates both a close relationship with his spouse and to some extent the ability to perform tasks that required concentration and commitment to an assignment. However, on and after July 11, 2014, when the Veteran files for another increase in his PTSD, the Board finds that his mental health condition reflects total occupational and social impairment. While the Veteran still maintains a relationship with his wife, the file indicates that he is unable to establish and maintain health relationships with other people. He specifically reported having "no real relationship" with his two sons, despite a long history of involvement in their lives. During the May 2015 examination, the Veteran was noted to have neglected his personal hygiene and he endorsed intermittent audio/visual hallucinations, suicidal ideation, and symptoms of depression that significantly impaired his ability to complete (or to even remember) work or personal tasks. Accordingly, after resolving the benefit of the doubt in favor of the Veteran, the Board finds that, on and after July 11, 2014, the evidence indicates that the Veteran's condition more closely reflects the 100 percent criteria for PTSD. Extraschedular Rating The Board has also considered whether the Veteran's PTSD warrants referral for extra-schedular consideration is warranted for the period prior to July 11, 2014. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extra- schedular rating. Id. In this case, the evidence does not show that the Veteran's disability presents an exceptional disability picture, insofar as his symptoms are expressly contemplated by the rating schedule. As outlined above, the Veteran has reported nightmares, intrusive thoughts, avoidant behaviors, social isolation, recurrent panic attacks, depression, suicidal ideation, irritability, short-term and long-term memory loss, other cognitive deficits that impact his ability manage his medications and finances, and periods of possible delusion. Such symptoms are contemplated by the schedular criteria set forth in 38 C.F.R. § 4.130, Diagnostic Code 9411. The regulations expressly consider many of these symptoms and further allow for other signs and symptoms of PTSD and depression which may result in occupational and social impairment. In other words, the currently assigned diagnostic code adequately contemplates the Veteran's symptoms. As the rating criteria adequately contemplate the Veteran's symptoms, the first step of Thun has not been met, and referral for the assignment of an extraschedular disability rating is not warranted. ORDER For the period prior to July 11, 2014, an evaluation of 70 percent for PTSD, but no higher, is warranted, subject to the laws and regulations governing the payment of monetary benefits. For the period on and after July 11, 2014, a 100 evaluation for PTSD is warranted, subject to the laws and regulations governing the payment of monetary benefits. REMAND "SMC is available when, 'as the result of service-connected disability,' a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities." Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114(k)-(s)). Section 1114(s) provides that SMC is warranted if the veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran's service-connected disability or disabilities, is permanently housebound. See 38 C.F.R. § 3.350(i) (2015). VA has a duty to maximize benefits, to include raising the issue of entitlement to SMC benefits when reasonably raised in the context of an increased rating claim. Buie v. Shinseki, 24 Vet. App. 242 (2011). A claim for increased disability compensation may include the "inferred issue" of entitlement to SMC even where the veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). For a portion of the period on appeal, the Veteran has been assigned a 100 percent schedular rating for his service-connected PTSD with depressive disorder and alcohol abuse; however, the Board notes this evaluation has not been granted for the entire period on appeal and the Veteran has not been afforded notification regarding the evidence needed to warrant this benefit. The issue has also not been adjudicated by the AOJ in the first instance. Accordingly, the Board finds that the issue of entitlement to SMC should be remanded to the AOJ to issue the Veteran appropriate notice of how to substantiate this inferred claim and to adjudicate the claim in the first instance. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding the claim of entitlement to SMC benefits. 2. Following the above development, the AOJ should readjudicate the claim. If the benefit sought is not granted, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs