Citation Nr: 1825136 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 14-35 261A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with secondary depression and panic attacks without agoraphobia, and history of alcohol abuse prior to September 30, 2013, and in excess of 70 percent thereafter. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to September 30, 2013. 3. Entitlement to special monthly compensation (SMC) based on housebound status. REPRESENTATION Veteran represented by: Shannon L. Brewer, Attorney ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1962 to June 1973 and November 1990 to May 1991, to include service in the Republic of Vietnam and Southwest Asia during the Persian Gulf War. His decorations include the Purple Heart medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for PTSD and assigned a 50 percent rating effective January 14, 2010. A March 2016 rating decision increased the Veteran's rating for PTSD to 70 percent, effective September 30, 2013. The Board notes that the Veteran's filed a Notice of Disagreement (NOD) as to the issue of entitlement to an effective date prior to September 30, 2013 for that 70 percent rating. Specifically, he asserts that his 70 percent rating should extent back to his date of claim in January 14, 2010. However, such a determination is part and parcel of the Board's assessment as to the appropriate rating assigned to his PTSD since the effective of service connection, or January 14, 2010. Since the Veteran does not seek an effective date prior to January 14, 2010, for the award of service connection for PTSD, but instead argues his PTSD should be increased to 70 percent for an earlier portion of the appeal period, the issue is most appropriately characterized as an increased rating claim, as reflected on the title page. As to the TDIU claim, the Board notes that the RO granted the Veteran a TDIU effective from September 30, 2013. However, the Veteran's claim for higher initial ratings for PTSD and therefore the claim for a TDIU has been pending since January 14, 2010. Therefore, the Board finds that it also has jurisdiction over a claim for a TDIU from January 14, 2010 to September 30, 2013, as well as a claim for SMC at the housebound rate under 38 U.S.C.A. § 1114(s). See Rice v. Shinseki, 22 Vet. App. 447 (2009); Bradley v. Peake, 22 Vet. App. 280 (2008). The Board notes that the Veteran requested a decision review officer (DRO) hearing in his October 2016 notice of disagreement (NOD); however, given the outcome of the decision below, the Veteran is not prejudiced by the Board's adjudication of the claim at this time. The Board notes that additional VA treatment records have been associated with the Veteran's claims file following the May 2016 supplemental statement of the case (SSOC). These records note ongoing psychiatric outpatient group counseling with diagnosis of PTSD and are duplicative of evidence previously considered by the agency of original jurisdiction (AOJ). Therefore, a waiver of AOJ consideration of this evidence is unnecessary. See 38 C.F.R. § 20.1304 (2017). The Veteran's attorney withdrew his Board hearing request in a January 2016 written statement. See 38 C.F.R. § 20.704(e). FINDINGS OF FACT 1. Throughout the appeal, the Veteran's PTSD most nearly approximates occupational and social impairment with deficiencies in most areas, but less than total social and occupational impairment. 2. Effective January 14, 2010, the Veteran's service-connected PTSD precludes him from securing or following substantially gainful employment. 3. The criteria for SMC at the housebound rate are met from July 12, 2012 to January 31, 2013. 38 U.S.C. § 1114 (s) (2012); 38 C.F.R. § 3.350 (2017). CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent for PTSD, but no more, are met from January 14, 2010, a rating in excess of 70 percent is denied throughout the appeal. 38 U.S.C. §§ 1154(a), 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU are met from January 14, 2010 to September 30, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(a) (2017). 3. The criteria for SMC at the housebound rate are met from July 12, 2012 to January 31, 2013. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating The Veteran's PTSD is currently rated 50 percent disabling prior to September 30, 2013, and 70 percent disabling thereafter. He contends that throughout the entire appeal his PTSD has been more severe than the currently assigned ratings and that he is entitled to increased ratings. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 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 military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). The Veteran's PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411 (2017). Ratings are assigned according to the manifestation of particular symptoms. However, 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 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for symptoms manifested by 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 the psychiatric condition produces 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. Finally, a 100 percent rating is warranted when there is total occupational or 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. After a review of the medical and lay evidence, the Board finds that the criteria for a higher rating of 70 percent are met throughout the appeal, effective January 14, 2010. The evidence shows that the Veteran's PTSD produces deficiencies in most areas due to such symptoms as: panic attacks three to four times per week, depressed mood, anxiety, suspiciousness, chronic sleep impairment, nightmares, impairment of memory, delayed memory, avoidance, disturbances of motivation and mood, isolation, impaired impulse control and judgment, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (crowded places). Conversely, the Board finds that the Veteran's symptoms do not more nearly approximate a rating of 100 percent as they are not of such a severity or frequency to result in total occupational and social impairment. In this regard, there is no medical or lay evidence in the record of gross impairment in thought processes or communication; persistent delusions; 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; or memory loss for own occupation, or own name. The March 2010 VA examiner described the Veteran as appropriately dressed and groomed, his cognitive skills were intact, and there was no evidence of a thought disorder or paranoia. See also September 2013 VA examination report. Notably, none of the VA examiners found that the Veteran was totally occupationally and socially impaired. Further, the February 2012 private examiner noted normal cognitive and neuropsychological functioning, albeit, noting an adverse effect caused by anxiety. As to impaired impulse control, the Veteran has consistently reported anger and irritability. He reported that his anger has the largest impact on his social relationships but that his wife and outpatient group counseling have helped him to control his anger. See October 2011 and June 2017 VA treatment records; March 2011 VA examination report. The Veteran has consistently denied suicidal or homicidal ideation/intent in his VA treatment records. However, he admitted to one game of Russian roulette after Vietnam but denied any subsequent suicidal thoughts or self-destructive behaviors. See March 2010 VA examination report. Further, he denied problems with physical violence but reported a long history of overreacting to stress and frustration, thereby alienating friends and partners. Id. The evidence shows a history of road rage and arguments with neighbors; however, he has reported improvements over time with medication and anger management groups. See July 2017 VA treatment record. Further, VA treatment records consistently note good impulse control, judgment, and insight. See April 2011, February 2012, and March 2016 VA treatment records. The Board notes the September 2013 VA examination findings of to poor judgment and insight. However, the Board finds that his periods of angry outbursts and irritability are contemplated by a 70 percent rating as he does not show persistent danger to himself or others that is characteristic of a 100 percent rating. As to social impairment, the Veteran has reported feelings of social detachment and estrangement. See January 2010 VA treatment record. He has reported that while in restaurants he sits in the corner, so that other people cannot sit behind him. Id. In his March 2010 examination he reported alienating friends and partners. He described himself as friendly and gregarious but over the past four years becoming increasingly isolative. He further reported a recent breakup with his girlfriend due to his anger issues. However, the Veteran subsequently married in February 2011 and reported that married life helped him deal with his PTSD. See October 2011 VA treatment record and February 2012 Dr. W.B. medical opinion. Thus, the Board notes that the Veteran maintained a relationship with his wife and otherwise demonstrated an ability to maintain some social relationships, despite significant, even severe, social impairments due to irritability, angry outbursts, and other symptoms described above. As to occupational impairment, he has reported several altercations with others due to temper. See March 2010 VA examination reported. In a January 2013 letter, the Veteran's treating VA psychiatrist found him "100% unfit for job duty." The Board notes that the evidence of record shows the Veteran has additional symptomatology not enumerated in the rating criteria, including hypervigilance, exaggerated startle response, intrusive memories, and night terrors. However, the symptoms listed in the rating criteria 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. These additional symptoms are not seen as effecting more than a reduction in reliability and productivity. Mauerhan. Based on the above-cited evidence and the Veteran' competent and credible reports as to the intensity, frequency, and nature of his psychiatric symptoms throughout the course of the appeal, a 70 percent rating for PTSD is warranted, from January 14, 2010. The evidence of record does not support a finding that the Veteran has exhibited the level of cognitive, occupational and social impairment that render him totally occupationally and socially impaired as a result of the type of symptoms listed in the general rating schedule or symptoms of a similar degree. As such, the preponderance of the evidence shows that the Veteran's psychiatric symptomatology does not more closely approximate the criteria for a 100 percent disability rating under the general rating schedule for psychiatric disorders. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. TDIU Entitlement to a TDIU has been raised by the record and is a component of the instant appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that TDIU is an element of all appeals of an increased rating and must be addressed if the possibility of the Veteran's unemployability is raised by the record). VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). TDIU can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). The instant decision awards the Veteran a 70 percent rating for PTSD from January 14, 2010, the date of service connection. Accordingly, since January 14, 2010, he has met the minimum percentage requirements for a TDIU. 38 C.F.R. § 4.16(a). The question is whether the claimant is capable of performing the physical and mental acts required by employment, not whether he or she can actually find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1 , 4.15, 4.16(a)). The Veteran asserts that he is entitled to a TDIU based on his service-connected PTSD prior to September 30, 2013. He reports that he last worked as a firefighter and paramedic from January 1976 until November 2000. The Veteran's educational background includes four years of college education. The Veteran reported to the March 2010 VA examiner that he had several altercations with other employees due to his temper but ultimately retired due to medical problems. In his private February 2012 examination, he reported being suspended in 1995 for engaging in a physical altercation with a younger firefighter because he "thought the guy was ignoring [him]" and he was ordered to attend counseling. As noted above, in a January 2013 letter, the Veteran's treating VA psychiatrist found him "100% unfit for job duty" as he is unable to cooperate or get along with others due to severe isolation, anger, and sleep impairment. The September 2013 VA examiner determined that the Veteran's psychiatric symptoms seriously interfere with his ability to get along with others, tolerate stress, and behave appropriately, without outbursts of anger. The September 2013 VA examiner's assessment is supported by the other findings in the record prior to September 30, 2013. Accordingly, the Board finds that the severity of the Veteran's symptoms described above preclude substantially gainful employment, even with his qualifications and education, throughout the appeal period. Thus, entitlement to a TDIU is warranted effective January 14, 2010. SMC VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim" and remanding, pursuant to VA's duty to maximize benefits, for VA to determine whether the Veteran's posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). Special monthly compensation is payable where the 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, 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 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Here, the Veteran has been assigned an 100 percent rating for his service-connected prostate cancer, status post prostatectomy from July 12, 2012 to January 31, 2013. Effective February 1, 2013, his prostate cancer was assigned a noncompensable rating. The instant decision awards the Veteran a 70 percent rating for PTSD and a TDIU effective January 14, 2010. Accordingly, from July 12, 2012 to January 31, 2013, the Veteran had a single service-connected disability rated as total (prostate cancer) and had an additional service-connected disability ratable at 60 percent or more (PTSD and/or TDIU). Therefore, he is entitled to SMC at the housebound rate from July 12, 2012 to January 31, 2013. Prior to July 12, 2012 and since January 31, 2013, the Veteran did not have a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability (TDIU based solely on his PTSD). Further, there is no evidence that the Veteran is permanently housebound by reason of service-connected disability or disabilities. Therefore, he is not entitled to SMC at the housebound rate prior to July 12, 2012 and since January 31, 2013. ORDER A 70 percent rating, but no higher, for PTSD is granted from January 14, 2010. A TDIU is granted from January 14, 2010. SMC at the housebound rate is granted from July 12, 2012 to January 13, 2013. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs