Citation Nr: 18141942 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-24 936A DATE: October 11, 2018 ORDER For the entire period on appeal, beginning July 24, 2012, a 100 percent rating is granted for PTSD, subject to regulations governing the payment of monetary benefits. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is dismissed as moot. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), is granted, from July 24, 2012. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran’s favor, for the entire period on appeal, beginning July 24, 2012, his PTSD has resulted in symptoms, to include persistent auditory and visual hallucinations, that approximate total occupational and social impairment. 2. As a 100 percent schedular disability rating is assigned for service-connected PTSD from the earliest possible point in the appeal period, and since the evidence does not support entitlement to a TDIU due other service-connected disabilities, there remain no questions of law or fact to be decided regarding TDIU. 3. During the pendency of the appeal, from July 24, 2012, forward, the Veteran’s PTSD is independently rated as 100 percent disabling, and his other service-connected disabilities are independently rated as 60 percent or more. CONCLUSIONS OF LAW 1. Resolving any reasonable doubt in the Veteran’s favor, for the entire period on appeal, beginning July 24, 2012, the criteria for disability rating of 100 percent for PTSD are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code (DC) 9411. 2. Entitlement to a TDIU is dismissed as moot. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.101. 3. The criteria for entitlement to a special monthly compensation (SMC) under 38 U.S.C. § 1114(s) have been met since July 24, 2012, the effective date of the 100 percent disabling rating for PTSD. 38 U.S.C. § 1114(s); 5107; 38 C.F.R. § 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1972 and from January 1976 to January 1978. Increased Rating Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria – PTSD The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (General Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130. VA received the Veteran’s increased rating claim on July 24, 2013. In a March 2014 rating decision, the RO increased the Veteran’s disability rating to 50 percent, effective July 24, 2013; however, in a June 2016 rating decision, the RO assigned an earlier effective date of February 15, 2011, for the assignment of the 50 percent disability rating, finding that on this date the medical evidence supported an increase. Nevertheless, the period on appeal in front of the Board is a year prior to the Veteran’s July 2014 increased rating claim, namely, July 24, 2012. In this case, higher ratings include a 70 percent rating, warranted if the evidence establishes 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 work like setting); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating (total occupational and social impairment) is warranted due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA’s general Rating Formula for mental disorders is 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; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous. Rating Analysis – PTSD The Veteran’s asserts that his symptoms are worse than the currently assigned 50 percent disability rating. After a careful review of the evidence, both lay and medical, the Board finds that the Veteran’s PTSD symptoms more nearly approximate a total occupational and social impairment, which warrant a 100 percent disability rating. Turning to the evidence, VA primary care note dated in October 2012 indicate that the Veteran denied any current anxiety or depression. Thereafter, during a December 2012 VA psychiatry appointment, the Veteran reported that he was tired of medications, and stated that he hated the holidays because they reminded him of the death of his daughter. He was teary throughout the interview, endorsed symptoms of depressed mood; irritability; anger; and, auditory hallucinations, which the Veteran described as “The voices I hear are people talking in Vietnamese, I don’t know what they are saying.” Upon mental status examination, it was noted that the Veteran was dressed appropriately, his mood was depressed, irritable, angry, and anxious, and his affect restricted. His concentration was distractible, and it was noted that his recent memory was “forgetful at times.” Thought content included auditory hallucinations, and judgment and insight were fair. He denied suicidal or homicidal ideation. During an additional April 2013 VA psychiatry appointment, the Veteran reported that he has not been able to get any sleep at all. He admitted that he had nightmares, flashbacks, and intrusive thoughts of war. Upon mental status examination, it was noted that the Veteran was dressed appropriately, his mood was depressed and anxious, and his affect restricted. His attention was distractible and concentration brief, and his recent memory was described as “forgetful at times.” Thought process and content was normal with no auditory or visual hallucinations and no delusional thoughts. Judgment and insight were fair, and the Veteran denied any suicidal or homicidal ideation. Thereafter, during a June 2013 psychiatry appointment, the Veteran stated, “nothing I’ve tried have worked. I don’t want any more medication.” The mental health professional noted that the Veteran’s most bothersome symptom was insomnia. Upon mental status examination, it was noted that the Veteran was dressed appropriately, his mood was depressed and anxious, and his affect restricted. His attention was distractible and concentration brief, and his recent memory was described as “forgetful at times.” Thought process and content was normal with no auditory or visual hallucinations and no delusional thoughts. Judgment and insight were fair, and the Veteran denied any suicidal or homicidal ideation. An October 2013 VA mental health nursing outpatient note indicates that the Veteran reported sleeping better when he used Flexeril, but stated that he did not use it regularly, because it “puts me in la la land.” It was noted that the Veteran suffered from hallucinations, described as waking up in cold sweat and seeing “the viet con” in his house, but when he gets his gun they disappear. A psychiatry note on the same day indicates that the Veteran reported that he was “doing ok,” and admitted that he still had problem sleeping. He further noted that during this time of the year he was depressed, because that is when his daughter died. He stated, “I just stay away from people during this time.” Upon mental status examination, it was noted that the Veteran was dressed appropriately, his mood was depressed on and off, and his affect restricted. His attention was distractible and concentration brief, and his recent memory was described as “forgetful at times.” Thought process and content was normal with no auditory or visual hallucinations and no delusional thoughts. Judgment and insight were fair, and the Veteran denied any suicidal or homicidal ideation. The Veteran underwent a VA PTSD examination in January 2014, at which time the examiner confirmed a diagnosis of PTSD, which was noted to be daily and mild. The Veteran reported that in the previous two-weeks, he had no problems falling asleep, but could not stay asleep. He stated that once he woke up, he was vigilant around the house, “sitting in the corner” waiting for someone to come in. In terms of social impairment, the Veteran reported that he was the caretaker of his spouse, and stated that “if it wasn’t for the fact that we’ve been married for 40 years I would leave.” He clarified that their relationship was good, but “all that work takes a toll on you.” He described his relationship with his children as “wonderful.” He indicated that he lived with his spouse with one of his female friends after they lost their house a few years earlier. The Veteran denied having friends or social connections, and stated, “I barely go out…more of a homebody person.” He said that he played golf once a week, but later said it was once in a blue moon. In terms of occupational impairment, it was noted that the Veteran last worked three or four years earlier as an executive for Marriott, but reported that “there was an incident” and they let him go. He explained that it was during a holiday party and a balloon popped, which caused him to spill coffee on a girl who worked at human resources, and despite knowing that he had PTSD, he was let go. Upon mental status examination, the examiner noted that the Veteran was adequately groomed and dressed casually. His interpersonal style was defensive and minimally responsive throughout the evaluation. Reporting was considered to be of questionable reliability based on behavioral representation, but appeared to be congruent with documented history. He was fully oriented, his speech was normal, and responses logical. His mood was irritable and affect was congruent with mood. There was no evidence of a formal thought disorder, and the Veteran denied psychosis including auditory and visual hallucinations. Insight and judgment appeared to be intact, and his memory appeared to be within normal limits. The examiner identified PTSD symptoms of depressed mood, anxiety, and chronic sleep impairment. The examiner stated that upon review of the claims file and clinical interview with the Veteran, it was determined that he continued to experience symptoms of PTSD at a mild range of intensity that were well controlled by psychotropic medications. The Veteran described minimal impairment to functioning, where the biggest impairment was sleep disturbances. The examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Subsequent VA treatment records dated in March 2014 indicate that the Veteran indicated that he had to leave to take care of his spouse. He stated that his medications were working well, but wanted to have his next appointment through the phone. Upon mental status examination, the Veteran was alert, dressed appropriately, and calm. His mood was described as depressed on and off, and affect restricted. His attention was distractible, concentration brief, and recent memory “forgetful at times.” Though process and content was normal with no auditory or visual hallucinations, and no delusional thoughts. His judgment and insight were normal, and he was fully oriented. He denied any suicidal or homicidal ideation. Thereafter, in May 2014, during a mental health appointment that was conducted via phone, the Veteran reported that he was exhausted from taking care of his spouse, and noted that his children were going to come and “give him a break” the following weekend. He denied suicidal or homicidal ideation, but admitted to being depressed and anxious on and off, due to his spouse’s illness. His mood was depressed, irritable, and anxious, and his affect was restricted. His attention was distractible, concentration brief, and recent memory “forgetful at times.” Thought process was normal, but thought content noted: “auditory hallucinations, no delusions thoughts.” His judgment and insight were normal, and he was fully oriented. Subsequent VA treatment notes dated in December 2015 indicate that the Veteran felt his medications were not particularly effective. He reported that he was “quite despondent” since his spouse died six-months earlier, and his father died two-months earlier. He noted that he did not sleep much because of his thoughts. It was noted that his depression was 7 out of 10 in severity and his anxiety 5 out of 10. His sleep was decreased and of poor quality for approximately three to four hours a night. He had decreased interest and pleasure in activities, low energy, and decreased appetite. Trauma related symptoms included hypervigilance, intrusive thoughts, and avoidance. He denied suicidal or homicidal ideation. Upon mental status examination, his mood was depressed and his affect restricted. Attention, concentration, and memory were normal. Thought process was normal, and no response was recorded for thought content. Judgment and insight were fair, and the Veteran was fully oriented. The mental health professional concluded that the Veteran had been quite despondent with the loss of his father and spouse within six-months, and while he denied suicidal thought, he admitted that he could not think about living without his spouse. The same was noted during a February 2016 psychiatry appointment, at which time the Veteran reported that he still had nightmares about Vietnam. It was further noted that the Veteran was adjusting to the loss of his father and spouse “a little better.” In support of his claim, the Veteran submitted April and May 2017 statements from a caretaker whom he paid to assist him with household chores and a friend, which noted symptoms such as impaired memory; lack of motivation; saying things that do not make sense; social isolation; neglect of personal appearance; and, suicidal ideation. The Veteran also submitted a June 2017 private disability benefit questionnaire (DBQ), authored by a licensed psychologist. The psychologist confirmed a diagnosis of PTSD. In terms of social impairment, it was noted that the Veteran was married once, was a widowed, had adult children, and denied being in a significant relationship and lived alone. He reported that he kept struggling alone, and did not want to burden others. The psychologist noted that he was social isolated and withdrawn. It was further noted that he had a caretaker to assist him at home and drive him to his appointments, as well as doing his foot shopping, meal preparation, household chores, and managing his finances. In terms of occupational impairment, it was noted that the Veteran earned his GED and attempted college, but was unable to graduate. His longest and last job was sales for Marriott for fifteen to twenty years until 2010. The psychologist noted PTSD symptoms of depressed mood; anxiety; suspiciousness; 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 affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work and worklike setting; inability to establish and maintain effective relationships; suicidal ideation; persistent delusions or hallucinations; neglect of personal appearance and hygiene; and, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The psychologist further noted that the Veteran detailed great ongoing difficulty with his symptom pattern, and noted that he could no longer enjoy the “simplest of activities.” Upon mental status examination, the Veteran’s attention was normal and concentration appeared variable. He complained of increased trouble with short and long-term memory, and indicated that he struggled with remembering basic information. His speech flow was normal, although he was brief with the information offered. On the day of the examination, his thought content was appropriate for the circumstances. There was a report of overt hallucinations. His knowledge, intellectual abilities, and capacity of abstraction were average, and his interpretation of proverbs and judgment were below average. His mood was anxious and nervous and his affect was restricted. He reported that he felt anxious and depressed. The psychologist indicated “In fact, on this day he endorses symptomology of PTSD, as he is vague with response, suspicious and seems rather vigilant when speaking with this examiner. He seems cautious of this important interaction this date. He is insecure and unsure of himself over the course of this social interaction.” It was noted that the Veteran was able to manage his own finances. The examiner further noted that the “DSM states individuals with this symptomatology typically have suicidal ideation.” It noted that he reported suicidal ideation, but denied plan or intent. He stated that he called the crisis line a year and half earlier due to suicidal ideation. He also reported auditory and visual hallucinations consisting of hearing noises and seeing shadow figures when no one is present. The psychologist further noted that the Veteran’s depression, suicidal ideation, and fatigue, “causes problems within the workplace…Employers note higher distractibility, absenteeism, and emotional turmoil as inappropriate in the workplace.” The psychologist concluded that the Veteran’s PTSD symptoms result in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. Based on the foregoing, the Board resolves all doubt in the Veteran’s favor to find that his symptoms more nearly approximate total occupational and social impairment. 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. Nevertheless, the evidence is at least in equipoise as to whether the Veteran experienced persistent hallucinations, which more nearly approximate a total occupational and social impairment. While it appears that the severity of the Veteran’s PTSD increased after the death of his father and spouse, the reported hallucinations existed prior to this date. Although some of the medical evidence describes perhaps a “milder” impairment due to the Veteran’s PTSD, the Board finds his lay assertions reporting hallucinations of high probative value to support that his symptoms more nearly approximate a total occupational and social impairment. Lastly, the Board notes that the evidence shows that the Veteran was unable to hold any gainful employment for the entire period on appeal directly as a result of his service-connected PTSD. TDIU and SMC The Veteran asserts that he is precluded from obtaining or maintaining substantially gainful employment, specifically as a result of his service-connected lumbar spine disability. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran is service-connected for PTSD rated as 50 percent disabling from February 15, 2011 to July 23, 2012, and 100 percent disabling from July 24, 2012, forward (based on the Board’s decision herein); left knee disability rated as 100 percent disabling from October 24, 2011 to November 30, 2012, and 30 percent disabling thereafter; diabetes mellitus rated as 20 percent disabling, effective August 5, 2002; bilateral lower extremity peripheral neuropathy rated as 20 percent disabling each, effective January 6, 2011; tinnitus and chronic right ear infections rated as 10 percent disabling each, effective August 2002 and December 2008, respectively, and right ear hearing loss rated as noncompensable. The Veteran had periods in which he received temporary total (100 percent) rating for his left knee disability. The Veteran had a combined rating of 70 percent from June 21, 2010; 80 percent from January 6, 2011; 100 percent from April 14, 2011; 80 percent from June 1, 2011; 100 percent from October 24, 2011; and, 90 percent from December 1, 2012. This appeal comes to the Board from a July 2013 informal claim for TDIU, a formal application was never received. The Veteran attorney argued that the December 2009 VA audiologist indicated that the Veteran’s hearing loss impacted occupational activities, and the July 2010 VA examiner noted that his left knee disability impacted occupational activities with decreased mobility, problems with lifting/carrying, decreased strength, lower extremity pain, assigned different duties, and increased tardiness and absenteeism. Nevertheless, after a careful review of the record, the Board finds that the record is suggestive that only the Veteran’s PTSD prevents him from obtaining and maintaining gainful employment. Notably, he was let go of his job due to an incident he directly related to his service-connected PTSD, and his informal claim for a TDIU indicated that he was unable to work due to the worsening of his PTSD symptoms. The Board recognizes that the Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court’s decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU 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.” Bradley, 22 Vet. App. at 293. Here, a TDIU, if granted, would be based on the Veteran’s service-connected PTSD alone, for which he is receiving a 100 percent schedular disability rating for the entire period on appeal, based on the Board’s decision herein. In addition, the Veteran does not assert and the evidence does not show that his other disabilities prevent him from obtaining any gainful employment to include any sedentary employment. Specifically, the fact that some occupational impairment was noted due to his noncompensable right ear hearing loss, and some difficulty with physical work noted due to his left knee is not sufficient to conclude that he was unable to do any type of work due to these disabilities. Thus, the Board finds that the evidence does not support a separate grant for a TDIU based on the Veteran’s other service-connected disabilities. Accordingly, the issue of TDIU is moot. In addition, because his PTSD is rated 100 percent for the entire appeal period, the claim for TDIU benefits is moot for the entire period covered by this claim. Nevertheless, in light of the Board’s decision herein, the Veteran is now in receipt of a 100 percent for the entire period on appeal beginning July 24, 2012, and his other disabilities are independently ratable at 60 percent or more during the entire period on appeal. While the Veteran was already in receipt of SMC under 38 U.S.C. § 1114(s) from October 24, 2011 to December 1, 2012, the Board finds that based on the decision herein, the criteria for SMC under 38 U.S.C. § 1114(s) have been met from July 24, 2012, forward. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel