Citation Nr: 18143340 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-29 117 DATE: October 18, 2018 ORDER Entitlement to an initial rating of 70 percent, and no higher, for PTSD is granted. Entitlement to a TDIU rating is granted. Entitlement special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114 (s) is granted. FINDINGS OF FACT 1. For the entire rating period, service-connected PTSD results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; however, total social and occupational impairment has not been demonstrated by the record. 2. For the entire rating period, the evidence of record demonstrates that the Veteran’s service-connected PTSD renders him unable to obtain or maintain gainful employment. 3. Based upon the Board’s award of a TDIU for PTSD, the Veteran has a single service-connected disability rated at 100 percent plus additional service-connected disabilities independently rated at 60 percent. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for establishing a 70 percent evaluation, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16 (2018). 3. The criteria for special monthly compensation (SMC) at the housebound rate have been met, beginning March 21, 2014. 38 U.S.C. §§ 1114 (s), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350(i) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1984 to May 2011. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). A Notice of Disagreement was submitted in February 2015; a Statement of the Case was issued in April 2016; and a VA Form 9 was received in June 2016. In a February 2015 statement, the Veteran’s representative raised a claim for a TDIU in the context of the Veteran’s increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim for a TDIU has, accordingly, been added to the appeal. Similarly, the issue of entitlement to additional SMC was not raised specifically at the RO level, but is inferred from, and is a component of, the rating claim on appeal. See Akles v. Derwinski, 1 Vet. App. 118 (1991) (There is no requirement that veteran must specify with precision statutory provisions or corresponding regulations under which he is seeking benefits). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2018); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the Veteran was provided adequate preadjudicatory notice addressing the initial claim for service connection for an acquired psychiatric disorder. The Board finds that VA examinations, when considered with other evidence of record, are sufficient for rating purposes. 1. Entitlement to an initial rating in excess of 30 percent for PTSD Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran has challenged the initial rating assigned for PTSD by seeking appellate review. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” rating. Fenderson, 12 Vet. App. at 126. Based on the evidence of record, the Board finds that a staged rating is not warranted for PTSD, and a 70 percent rating is warranted for the entire appeal period. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran has been assigned an initial 30 percent disability rating under Diagnostic Code 9411 for PTSD. A higher 50 percent rating is assigned for 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned for 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 that is 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. A 100 percent disability rating is assigned 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, or for the veteran’s own occupation or name. In evaluating psychiatric disorders, the Board is mindful that the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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). VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013). “A veteran may only qualify for a given rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Further, “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” The Global Assessment of Functioning (GAF) score is a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental health and illness. As relevant to this claim, a GAF score of 31 to 40 is defined as indicating some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated Fifth Edition (DSM-V). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran’s appeal to the Board in 2016, and therefore the claim is governed by DSM-V. However, because a GAF score was assigned during the pendency of this appeal, the Board will discuss the GAF score assigned. Analysis The Veteran contends that a higher initial rating is warranted for his service-connected acquired psychiatric disorder. The Board finds, resolving reasonable doubt in the Veteran’s favor, that currently diagnosed PTSD results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Initially, there is conflicting evidence of record with regard to the severity of the Veteran’s PTSD. A December 2014 VA PTSD examination revealed increased social impairment due to hyperarousal and anhedonia; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships. He described occupational and social impairment due to mild or transient PTSD symptoms with decrease in work efficiency and ability to perform occupational tasks only during periods of significant stress. On the other hand, mental health treatment records from the Veteran’s treating psychiatrist, Dr. J., dated from 2014 to 2015 reflect that the Veteran experienced flashbacks and nightmares of his Marine Corps service. He also endorsed problematic sleep and episodes of inadvertently hitting his wife in his sleep while having a nightmare. He could not tolerate crowds and avoided them at all costs. He endorsed suicidal thoughts in association with his psychiatric medications. He stated that his psychiatric symptoms had “kept me from getting out and doing things and that has affected my life too.” He stated that he had “no trust in other people” and that his marriage had been affected by his symptoms. He had a few friends but did not seek to start to new friendships. He reported having a good relationship with his children. He last worked in 2013 as a fuel operator. He stated that his long and short-term memory had been affected by his PTSD. Other symptoms included difficulty concentrating, irritability, guarding (scanning his surroundings), irritability/outbursts, feeling sad most of the time, getting little pleasure from things he used to enjoy. He described feeling sudden rushes of intense fear, panic, anxiety and discomfort occurring up to four times per month. During those episodes, he experiences an increased heart rate, nausea, and dizziness. Objectively, he was cooperative, but dull and depressed. He denied any hallucinations or circumstantial thoughts. The assessment was PTSD and moderate to severe major depressive disorder. The Veteran was started on Zoloft and Trazodone. A GAF of 40 was assigned. Private treatment records dated in 2015 from Dr. J. reflect ongoing treatment for psychiatric symptoms, including problems with socialization (does not leave the house unless he has to); nightmares; flashbacks; hyperarousal symptoms; blunted affect with psychomotor retardation; and GAF scores of 40. The Veteran underwent another VA examination in June 2015; at that time, the examiner also diagnosed PTSD and major depression and noted that it was not possible to differentiate what portion of each symptoms was attributable to each diagnosis. The Veteran stated that his wife was his support and network and that she, alone, “takes care of me, she will lay out my clothes (due to him re-wearing his clothes), and cooks and cleans.” He reported that he enjoyed fishing and landscaping on occasion. He reported last working in 2013 and when asked about any potential problems in the workforce he stated, “I don’t like crowds”. Objectively, he was neat, with good hygiene, minor psychomotor retardation, fair to poor eye contact, depressed affect, and depressed mood. He described having a recent panic attack while in Walmart with his wife (“It was overly crowded and had a panic attack; I was sweaty, increased heart rate, shallow breathing, tightness in my chest, I had to go sit in the car”). He described hypervigilance at home and when he goes out. He was oriented with unremarkable thought content, good insight, good judgment, no hallucinations, no delusions, decreased concentration; and good impulse control. He reported sleeping 3 to 5 hours per night, nightmares, and inadvertently grabbing his wife on occasion. Other symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood. The VA examiner noted that the Veteran’s psychiatric symptoms (e.g., irritability, detachment, panic attacks, exaggerated startle response, etc.) mildly impaired his ability to work cooperatively and effectively with co-workers and supervisors and severely affected his ability to work with the public. Other symptoms (e.g., difficulty concentrating, insomnia, hypervigilance, intense psychological distress at exposure to cues, etc.) also mildly affected his ability to understand and follow instructions and moderately affected his ability to retain instructions and solve technical or mechanical problems. Lastly, the Veteran’s apathy, anhedonia, panic attacks and fatigue mildly affected his ability to maintain task persistence and work a regular schedule. The evidence of record shows that, for the entire rating period, the Veteran has psychiatric symptoms related to depression, anxiety, chronic sleep impairment, intrusive thoughts and flashbacks, panic attacks, occasional suicidal ideation, difficulty with concentration, impaired memory, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. While the 2014 VA examination identified the Veteran’s PTSD as mild or transient in nature, the contemporaneous private psychiatric assessment by Dr. J. described the psychiatric symptoms as moderate to severe, along with GAF scores of 40, which are likewise indicative of severe impairment. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that when it is not possible to separate the effects of a nonservice-connected disorder from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability). The Board finds that these assessments are consistent with lay statements provided by the Veteran. In short, the Board finds that the Veteran’s PTSD has been characterized by symptoms and a level of impairment consistent a 70 percent rating under Diagnostic Code 9411. While the Veteran’s symptoms, to include depression, anxiety, sleep impairment, memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships are consistent with a 50 percent rating, he has exhibited difficulty in adapting to stressful circumstances (as described generally by Dr. J.), occasional suicidal ideation (also described by Dr. J.), and occasional neglect of personal appearance and hygiene (as described by June 2015 VA examiner (i.e., re-wearing of dirty clothes), consistent with a higher 70 percent rating. The Board likewise notes that the Veteran has exhibited other symptoms, such as hyperarousal and psychomotor retardation, that are similar in severity, frequency, and duration to those contemplated by the 70 percent rating criteria. See Vazquez-Claudio, supra. Thus, collectively considering the private psychiatric assessments and GAF scores, the VA examination reports, and the Veteran’s own lay statements, and in resolving reasonable doubt in his favor, the Board finds that a higher initial 70 percent rating is warranted for the entire rating period. However, the Veteran has not met or more nearly approximated the criteria for a higher 100 percent disability rating for his acquired psychiatric disorder at any time during the appeal period. See 38 C.F.R. § 4.130. The record does not indicate total occupational and social impairment, due to symptoms of such a severity as described for a 100 percent evaluation. In this case, the Veteran has maintained a relationship with his wife and his children for the entire appeal period and according to his own narratives, he has a small group of friends and enjoys fishing and landscaping on occasion. No mental health examiner has ever indicated that the Veteran’s symptoms approximate total social and occupational impairment. Moreover, the Veteran did not exhibit symptomatology of such severity as indicated for a 100 percent rating (i.e. gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; and memory loss for names of close relatives, or for the veteran’s own occupation or name). Although the Veteran reported some suicidal ideation with the use of an anti-depressant medication, he has since discontinued the medication. Thus, a persistent danger of self-harm or harm to others, consistent with the 100 percent rating criteria, has also not been shown. Moreover, while he has been shown to have memory loss, this has been characterized as mild in nature and does not rise to the level severity contemplated by the 100 percent rating. In short, there is simply not a showing of PTSD symptoms listed for the 100 percent disability rating, or symptoms that are of similar duration, frequency, and severity, that would warrant finding that the Veteran is totally occupationally and socially impaired. See Vazquez-Claudio, supra. Accordingly, the Board finds the that Veteran’s PTSD symptoms are comparable indicators of the type of occupational and social impairment contemplated in the criteria provided for a 70 percent rating under the General Rating Formula, but no more. 2. Entitlement to a TDIU rating TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided 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, 3.341, 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. 38 C.F.R. §4.16 (a). Pursuant to the initial rating decision above, the Board has granted a 70 percent rating for service-connected PTSD for the entire rating period. The Veteran is additionally service-connected for obstructive sleep apnea (50 percent disabling); keratosis pilaris (30 percent disabling); tinnitus (10 percent disabling); status post left shoulder (0 percent disabling); lumbar strain (0 percent disabling); right knee patellofemoral syndrome (0 percent disabling); left knee patellofemoral syndrome (0 percent disabling); left ankle sprain (0 percent disabling); right ankle sprain (0 percent disabling); left leg shortening (0 percent disabling); pes planus and plantar fasciitis, bilateral (0 percent disabling); allergic rhinitis (0 percent disabling); hypertension (0 percent disabling); erectile dysfunction (0 percent disabling); pseudofolliculitis barbae (0 percent disabling); right carpal tunnel syndrome (0 percent disabling); and left carpal tunnel syndrome (0 percent disabling). For the entire rating period, the Veteran has met the schedular criteria for a total disability rating based on individual unemployability. The next step is to determine whether the Veteran was unemployable due to his service-connected PTSD. 38 C.F.R. §§ 3.340 (a)(1), 4.15 (2018). The Board finds that for the entire rating period, the Veteran has not been able to secure and follow gainful or more than marginal employment due to his service-connected disabilities. With regard to the Veteran’s educational and employment history, the record shows that the Veteran has not worked since 2013, at which time he was employed as a fuel operator; he has a high school education with no other specialized training. The weight of the evidence shows that the Veteran is not capable of maintaining gainful employment due to his service-connected PTSD. In this case, the Veteran has consistently reported that he is unable to maintain gainful employment as a result of his PTSD symptoms. Notably, the June 2015 examiner found that the Veteran’s symptoms (e.g., irritability, detachment, panic attacks, exaggerated startle response, etc.) mildly impaired his ability to work cooperatively and effectively with co-workers and supervisors and severely affected his ability to work with the public. Other PTSD symptoms (e.g., difficulty concentrating, insomnia, hypervigilance, intense psychological distress at exposure to cues, etc.) mildly affected his ability to understand and follow instructions and moderately affected his ability to retain instructions and solve technical or mechanical problems. Lastly, the Veteran’s PTSD symptoms of apathy, anhedonia, panic attacks and fatigue mildly affected his ability to maintain task persistence and work a regular schedule. With consideration of the Veteran’s occupational background, education, and his psychiatric symptoms, to include depression, anxiety, frequent panic attacks, significant memory loss, difficulty with understanding complex commands, difficulty in maintaining effective work and social relationships, and disturbances of mood and motivation, the Board finds that the evidence is at least in equipoise as to whether he is unable to obtain and maintain substantially gainful employment as a result of his service-connected PTSD. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted for the entire period on appeal. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. SMC Because of the above awards of benefits, the claim of entitlement to SMC for statutory housebound benefits has been raised by the record. SMC is payable at the housebound rate where the claimant has a single service-connected disorder rated as totally disabling and one or more distinct service-connected disabilities, which are independently ratable at 60 percent or more and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114 (s)(1); 38 C.F.R. § 3.350 (i). A single service-connected disability that is rated less than 100 percent but nonetheless supports a TDIU rating is sufficient to satisfy the criteria for statutory housebound status. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). As discussed above, the Board has determined that a TDIU predicated on the Veteran’s service-connected PTSD, alone, is warranted. In addition, the Veteran is service-connected for, inter alia, obstructive sleep apnea (50 percent disabling); keratosis pilaris (30 percent disabling); and tinnitus (10 percent disabling). These disabilities involve different bodily systems than the Veteran’s PTSD disability, and they are, together, ratable at 60 percent or more. See 38 C.F.R. § 4.25, (a)-(b), Table I (2017). Accordingly, the Board finds the criteria for entitlement to SMC under 38 U.S.C. § 1114 (s), 38 C.F.R. § 3.350 (i) have been met. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Hoeft, Counsel