Citation Nr: 18144900 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 12-11 637A DATE: October 25, 2018 ORDER Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability based on individual unemployability (TDIU) is granted. Entitlement to special monthly compensation (SMC) is denied. FINDINGS OF FACT 1. Since the grant of service connection, the Veteran’s PTSD has been manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 2. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that he is unable to secure and follow substantially gainful occupation by reason of his service-connected disabilities. 3. The evidence shows that while the Veteran has a single service-connected disability rated at 100%, his combined rating for the remaining service-connected disabilities does not total 60 percent and there is no evidence showing that the Veteran is permanently housebound as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU have been met. 38 C.F.R. § 4.16. 3. The criteria for entitlement to SMC have not been met. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from May 1967 to July 1970, including service in the Republic of Vietnam. This case comes to the Board of Veterans’ Appeals (Board) on appeal from November 2008 and July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The November 2008 rating decision denied service connection for PTSD. Subsequently, by a rating decision dated February 2010, the RO granted service connection for PTSD, assigning a 10 percent rating effective June 30, 2008. By an April 2012 rating decision, the RO increased the rating for the Veteran’s PTSD to 30 percent disabling effective June 30, 2008. As the RO’s actions do not constitute a full grant of the benefit sought and the Veteran has not expressed satisfaction with the increased ratings, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran testified at a Decision Review Officer (DRO) hearing on June 12, 2017. The increased rating claim for PTSD was previously remanded by the Board in December 2017 to acquire an updated VA examination. As the TDIU issue was inextricably intertwined with the increased rating claim, that too was remanded. The Board finds substantial compliance with the prior December 2017 Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) The Veteran contends that his PTSD symptoms have worsened warranting an increase in rating from 30 percent. The Veteran further contends that he has frightening and terrifying memories that continue to affect his life and these memories occur more frequently now that he is retired. Disability rating are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB, 6. Vet. App. at 39. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In a decision, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall resolve reasonable doubt in favor of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran’s PTSD is rated under DC 9411. Pursuant to DC 9411, a 30 percent rating is assigned when there is occupational and social impairment with occasional decreases 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, recent events). A 50 percent rating is warranted when there is 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 warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. 38 C.F.R. § 4.130, DC 9411, General Rating Formula for Mental Disorders. Symptoms listed in VA’s general rating formula for mental disorders 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). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. In addition, the rating must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Further, when rating the level of disability from a mental disorder, the extent of social impairment is considered, but a rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126. Evidence relevant to the current level of severity of PTSD includes a February 2009 Psychiatry Triage Consult with the VA. At that time, the Veteran requested a PTSD consultation due to reported symptoms of regular disturbing dreams, flashbacks about Korea and Vietnam, anxiety in crowds, startled by noises, depressive symptoms, stress related to wife’s grandchildren moving in his house, and daily use of cannabis. The examiner diagnosed the Veteran with Cannibis Dependence and Mood/Dysthymic Disorder not otherwise specified and ruled out PTSD. The Veteran’s treatment plan included group counseling, individual counseling, and medication management. During a January 2010 Initial Evaluation for PTSD with the VA, the examiner diagnosed the Veteran with PTSD and found that the Veteran’s symptoms resulted in mild to moderate impairment in his social functioning and no impairment in work functioning. At the time, reported symptoms included: nightmares three times per week, night sweats one to two times per week every two weeks, helicopter and crowd avoidance, hypervigilance when outside the home, startled by loud noise and fireworks, strained relationship with his wife, positive relationship with his brothers and adult children, and socialization with a small group of people. The Veteran reported that he worked at his last job for 42 years and retired due to unrelated medical problems. He also reported that he enjoyed fishing with a friend and gardening at home. The examiner opined that the Veteran’s symptoms cause distress and that his irritability impacts his marriage. The examiner added that the Veteran has some close relationships, but there is some numbing. The Veteran continued engaging in group therapy, individual therapy, and medication management with the VA. On July 2011, the Veteran participated in neuropsychological testing for nonservice-connected myasthenia gravis. The results indicated severe anxiety levels with severe fear reactions. The results also indicated severe depression levels with primary symptoms of pessimism, agitation, anhedonia, indecisiveness, fatigue, and concentration problems. Results further indicated vague suicidal ideation, but no intent, plans, or behavior. Cognitive testing indicated some moderate impairment in immediate memory functioning and visuospatial/constructional abilities, but attention and delayed memory appeared to be intact. The examiner opined that is was difficult to fully tease apart the memory impairments with the Veteran’s depression and anxiety, due to the severity of the depression and anxiety. The examiner recommended that the Veteran reengage in therapy, as he had discontinued therapeutic services. A re-evaluation of the Veteran’s medication was also recommended. On February 2012, the Veteran received an updated VA examination for PTSD. The examiner found that the Veteran’s symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The reported symptoms included: nightmares a couple of times weekly, night sweats, lashes out in sleep six-seven times monthly, which resulted in feeling drained and lacking energy. Additional symptoms included: avoidance of discussing combat experience, avoidance of crowds due to hypervigilance, avoidance of war movies, mild detachment with respect to family members, startled response to loud noises and helicopters, panic attacks twice per month, and problems concentrating and completing tasks. During the exam, the examiner noted that the Veteran’s eye contact was excellent, his speech rate and volume were normal, his thought processes were logical and coherent, his thought content was appropriate, and his concentration was unimpaired. The examiner noted that there were no problems on the Veteran’s mental status exam by which to assess his ability to follow complex directions. The examiner diagnosed the Veteran with mild dysphoric mood related to his medical conditions, changes due to losses over the years, and chronic conflict with his wife and situational stressors. On November 2013, the Veteran received an initial psychiatric evaluation with a new provider because his previous provider retired. The Veteran reported symptoms including irritability, dizziness, drowsiness, and disorientation. He also reported short term memory issues and continued nightmares one to two times per month. The Veteran told the examiner that he enjoyed spending time with his dogs and looked forward to traveling. He did not report any issues socializing and going out in his community. The examiner diagnosed the Veteran with Anxiety NOS and opined that he did not currently meet the criteria for PTSD. The examiner continued the Veteran’s medications with a few adjustments. During 2015-2016, the Veteran attended PTSD group classes through the VA. The Veteran appeared at a DRO hearing on June 12, 2017 with his representative and wife. The Veteran stated that he has a fear of trust and difficulty associating with other people due to his fear. He reported that he has nightmares associated with his experiences in Vietnam and sleeps in a separate bed than his wife due to flinging around in his sleep. The Veteran stated that he last saw a mental health provider a year ago, but seeks treatment and medication management a couple of times a year with his primary care provider at the VA. He reported that he is always on guard and looking around for unusual or out of place people and items. The Veteran stated that he has difficulty concentrating and forgets his train of thought and his wife added that he does not finish projects around the house. The Veteran asserted that he takes Lorazepam because he has terrible anxiety. His wife followed up by stating that the Veteran needs his medication to live. He described taking medication for feelings of depression, but the medication slows him down and interferes with his concentration. The Veteran’s spouse added that the Veteran gets agitated easily, has panic attacks, and disinterest in socializing with friends and family. On January 2018, the Veteran attended an updated VA exam as ordered by the Board’s December 2017 remand to determine whether his PTSD symptoms had increased in severity, duration, and frequency. The examiner again opined that the Veteran’s symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. During the exam, the Veteran stated that he speaks to his daughter daily, takes care of his dogs and cats, plays poker with a friend weekly, gardens, visits the casino weekly with his wife, and watches CNN daily. The Veteran’s stated PTSD symptoms included: problems with verbal aggression towards wife maybe once a week, problems with his sex life, emotional numbing, flashbacks and dreams related to his experience in Vietnam, waking up frequently in cold sweats, forgetfulness of things his wife asks him to do, and concentration problems. The examiner also noted that elevated clinical scales in the areas of somatic complaints, anxiety, anxiety-related disorders, depression, and schizophrenia. The results suggest preoccupations with physical functioning and health concerns, traumatic stress symptoms and affective/physiological symptoms of anxiety, depressed affect and vegetative symptoms of depression, social detachment/alienation, and possible symptoms of thought disorder. The examiner found that the Veteran’s profile was similar to those obtained by persons noted to have schizophrenia, somatoform disorders, PTSD, or persons experiencing psychotic symptoms, but it is likely that the Veteran’s ongoing problems with pain and other medical problems contribute to the somatoform component. It was also noted during the examination that the Veteran probably smokes cannabis daily and has resorted to purchasing Lorazepam on the streets because his primary care provider discontinued his prescription. The examiner continued diagnoses for PTSD and Cannibis Use Disorder, moderate and considered an additional diagnosis of Sedative Use Disorder/Opioid Use Disorder based on the Veteran’s medical history and current statements of use. The examiner concluded the evaluation by opining that there is no indication that the Veteran’s overall mild to moderate psychiatric impairment alone renders him unable to engage in some kind of solitary/sedentary work where reasonable accommodations are made. Overall, the totality of the evidence reflects symptoms warranting no more than a 30 percent rating under the applicable criteria. The evidence of record shows symptoms warranting a continued rating at 30 percent due to chronic sleep impairment, anxiety, depression, avoidance, infrequent panic attacks, mild memory loss, and a strained relationship with the Veteran’s spouse. However, the Board finds that the severity, duration and frequency of the Veteran’s symptoms have not produced occupational or social impairment with reduced reliability of productivity warranting a rating increase to 50 percent. The evidence shows that the Veteran maintains positive relationships with his family and a few friends and he enjoys activities like caring for his pets, gardening and playing poker. The evidence shows that the Veteran does not struggle with understanding complex commands as he maintained the same job for 42 years; he retired because of his heart and myasthenia gravis conditions. The evidence shows that the Veteran is capable of caring for himself and others, and enjoys some activities. The Veteran’s clinical scales during a July 2011 neuropsychological test and his January 2018 VA examination show symptoms of impaired memory and disturbances of motivation of mood, which may warrant a 50 percent or higher rating. However, these symptoms have not been continuously reported by the Veteran or continuously noted by VA treating physicians and examiners. Further, the examiner in January 2018 opined that the elevated scales were likely related to the Veteran’s ongoing problems with pain and other medical issues. Also, the examiner found the Veteran’s thought process to be logical and goal directed, his memory was intact, and his attention was fair to good. Thus, the symptoms of impaired memory and disturbances of motivation of mood have not been frequent or severe enough to justify a rating beyond 30 percent. In sum, the Board concludes that the Veteran’s PTSD is not manifested by symptomatology that nearly approximates the criteria for the next higher evaluation under DC 9411. As the criteria for the 50 percent rating are not met, it logically follows that the criteria for any higher evaluation likewise are not met. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert, 1 Vet. App. at 54. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a TDIU The Veteran contends that his claim for TDIU is moot due to the RO granting a 100 percent rating for his service-connected coronary artery disease effective June 12, 2017. Prior to receiving the 100 percent rating, the Veteran contended that the combined effects of his service-connected disabilities rendered him unemployable. A total disability rating may be assigned when the schedular rating is less than 100 percent where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). From April 18, 2011 to June 12, 2017, the Veteran has established service connection for coronary artery disease with aortic valve replacement, rated 60 percent disabling; PTSD, rated 30 percent disabling; tinnitus, rated 10 percent disabling; residuals, right ankle sprain, rated 10 percent disabling; bilateral hearing loss and erectile dysfunction associated with PTSD, each rated noncompensable. The Veteran’s combined rating for compensation purposes was 80 percent effective April 18, 2011 to June 12, 2017. Therefore, the Veteran met the schedular rating criteria for TDIU beginning April 18, 2011. 38 C.F.R. § 4.16 (a). The remaining inquiry is whether he was unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. The Veteran last worked in 2008 when he retired due to medical complications from his heart condition and myasthenia gravis. The Veteran worked at Carrier Corporation for 42 years in skilled trades as a machine repairman and a journeyman. The records indicate that the Veteran received a bachelor’s degree in business management many years ago and completed two years at a trade school. During a February 2012 VA examination for PTSD, the Veteran stated that when he was working, he was drowsy at work due to an inability to sleep as result of his nightmares. He added that working with his service-connected heart condition was difficult because his heart beat fast, he had low energy, and was unable to finish projects. A January 2013 statement provided by Dr. C.A.H. at the VA Medical Center, noted that the Veteran’s multiple medical problems make him unemployable. The Veteran provided a Statement in Support of Claim on December 2013, where he contended that he was unemployable due to the amount of medication he took for his service-connected and nonservice-connected conditions. He stated that the medication made him dizzy, drowsy, unstable and disoriented. He further added that he tended to fall down two to three times a day, even when using a cane. On a December 2013 Disability Benefits Questionnaire (DBQ) for the Veteran’s ankle condition, the examiner indicated that the ankle condition impacted his ability to work. In support of the functional impact, the examiner cited to a statement from the Veteran which stated: “never know when they are going to collapse on me, worried about falling, makes it hard to stand on my feet a long time” and “they wouldn’t want me working on Vicodin.” On a June 2015 DBQ for the Veteran’s artery and vein condition, the examiner checked that the Veteran’s service-connected heart condition impacted his ability to work because the Veteran is fatigued due to anemia. Additionally, during the June 12, 2017 DRO hearing, the Veteran provided several statements explaining that the combination of the Veteran’s disabilities made it difficult for him to work. He stated that his heart condition prevented him from walking, lifting heavy objects or climbing stairs. His right ankle condition made it difficult to walk and he was unable to be in stressful situations due to his PTSD. Based on the foregoing, the Board finds that the totality of the evidence supports a finding that the Veteran’s service-connected disabilities render him unemployable. Specifically, the evidence suggests that the Veteran’s service-connected disabilities impact his ability to perform physical or sedentary tasks. Although the Veteran is also diagnosed with nonservice-connected myasthenia gravis, it is difficult to separate the debilitating symptoms of the nonservice-connected and service connected disabilities. Under the circumstances, where there is an approximate balance between the positive and negative evidence, the benefit of the doubt is given to the veteran. 38 C.F.R. § 3.102. Therefore, the Board finds that it is at least likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. Accordingly, TDIU is warranted throughout the duration of the appeal. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. Entitlement to special monthly compensation (SMC) The Veteran contends that his claim for TDIU is moot due to the RO granting a 100 percent rating for his service-connected coronary artery disease effective June 12, 2017. However, although entitlement to a 100 percent rating had been previously granted for a single service-connected disability, the VA must still consider whether an award of SMC was warranted on a stand-alone basis for any of the Veteran’s service-connected disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Special monthly compensation is payable at a specified rate if a veteran under 38 U.S.C. § 1114(s) when a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. 38 C.F.R. § 3.350(i). For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or, 4.30 (temporary total convalescence rating). Additionally, a total disability rating based on individual unemployability (TDIU) may meet the criterion, but only if assigned for a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). While the separate disabilities rated as 60 percent disabling must involve separate and distinct anatomical segments or body systems, the fact that the total disability and the independent 60 percent disabilities result from a common etiological agent will not preclude entitlement. With regard to the permanently housebound requirement, this is met where a veteran is substantially confined as a direct result of a service-connected disability to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinic areas, and it is reasonably certain that the disability or disabilities and resulting confinement will continue throughout his or her lifetime. Id. Here, the Veteran received a 100 percent schedular rating for a single service-connected disability (coronary artery disease) effective June 12, 2017. His remaining disabilities are PTSD, rated 30 percent disabling; tinnitus, rated 10 percent disabling; residuals, right ankle sprain, rated 10 percent disabling; bilateral hearing loss and erectile dysfunction associated with PTSD, each rated noncompensable. For the remaining disabilities, the Veteran’s combined rating for compensation purposes is 40 percent. Additionally, there is no evidence in the record showing that the Veteran is housebound by reason of his service-connected disabilities. The evidence shows that the Veteran is able to care for his pets, perform household maintenance, and leave the house to meet with friends. Further, the Veteran himself has not suggested he is unable to leave his home. Therefore, the Veteran is ineligible for SMC under 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel