Citation Nr: 1825901 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 16-22 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a higher initial rating for service-connected posttraumatic stress disorder (PTSD), currently rated as 30 percent disabling. 2. Entitlement to special monthly compensation (SMC) based on housebound status pursuant to 38 U.S.C. § 1114(s) from June 20, 2016. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from April 1964 to February 1967, including decorated combat service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts that granted service connection for PTSD and assigned a 30 percent initial rating. The Veteran timely appealed the initial rating assigned. Additional evidence has been received since the most recent adjudication by the RO in March 2016. Since the appeal was certified in June 2016, a specific waiver of RO consideration is not necessary. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial agency of original jurisdiction (AOJ ) review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a Substantive Appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence). The issue of entitlement to SMC has been raised in the context of the current appeal. SMC benefits "are to be accorded when a veteran becomes eligible, without need for a separate claim." Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (citing Akles v. Derwinski, 1 Vet. App. 118, 121 (1991)). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Prior to April 7, 2016, the evidence is at least evenly balanced as to whether the symptoms and overall impairment caused by the Veteran's service-connected PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas, but they did not more nearly approximate total occupational and social impairment. 2. From April 7, 2016, the evidence is at least evenly balanced as to whether the symptoms and impairment caused by the Veteran's PTSD more nearly approximate total occupational and social impairment. 3. From June 20, 2016, the Veteran is now service-connected for the following disabilities: PTSD, rated as 100 percent disabling; Parkinson's disease, right lower extremity impairment, left lower extremity impairment, diabetes mellitus, left sided cranial nerve impairment, and bradykinesia, each rated 20 percent disabling; right sided cranial nerve impairment and tinnitus, each rated 10 percent disabling; and loss of sense of smell and neurogenic bladder, noncompensable. 4. From June 20, 2016, the Veteran had a service-connected disability rated as total and additional separate and distinct service-connected disability ratable at 60 percent or more. CONCLUSIONS OF LAW 1. Prior to April 7, 2016, the criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). 2. From April 7, 2016, with reasonable doubt resolved in favor of the Veteran, the criteria for a 100 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.125, 4.126, 4.130, DC 9411 (2017). 3. From June 20, 2016, the criteria for SMC based on housebound status pursuant to 38 U.S.C. § 1114(s) have been met. 38 U.S.C.A. § 1114(s) (2012); 38 C.F.R. § 3.350(i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The higher initial rating claim for PTSD was substantiated upon the grant of service connection in the appealed rating decision. Additional notification following the service connection grant is not required. Hartman, supra.; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Neither the Veteran, nor his representative, asserts prejudice from any notification deficiency and none has been identified by the Board. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and affording him VA examinations, most recently in March 2017. The Board notes references to outstanding Vet Center counseling records. The Veteran has not specifically requested consideration of these records. The instant decision results in a near total grant of the higher initial rating claim. There is no indication that these records would provide additional favorable information to warrant additional increases than those granting in the instant decision. In this case, a remand for further development would not raise any reasonable possibility of substantiating entitlement to additional benefits than those granted in the instant decision. Winters v. West, 12 Vet. App. 203, 208 (1999) (en banc) ("[A] remand is not required in those situations where doing so would result in the imposition of unnecessary burdens on the [Board] without the possibility of any benefits flowing to the appellant"); see also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"); 38 C.F.R. § 3.159(d). II. Higher rating for PTSD Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Staged ratings are appropriate for any 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) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The Veteran's PTSD is currently evaluated as 30 percent disabling under 38 C.F.R. § 4.130, DC 9411. All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders. Under the general rating formula, a 30 percent evaluation is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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 intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such an 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. A total schedular rating of 100 percent is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. 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 the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because 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, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). 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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. May 2015 private medical records reflected that the Veteran's wife prompted him to discuss his alcohol consumption with his primary care provider. The Veteran consumed alcohol at night and sustained some fall injuries. His primary care provider advised him that his level of alcohol use was harmful, but indicated that he had poor insight about the problem from his evasiveness. She advised him to seek mental health treatment to help resolve his excessive alcohol use. In August 2015, the Veteran's wife submitted a letter in support of the claim. She reported that the Veteran had nightmares and sleep disturbances, irritability that caused work difficulties, persistent alcohol use, and limited friendships. In September 2015, a Vet Center counselor submitted a letter in support of the claim. He confirmed that the Veteran had PTSD due to combat stressors. The Veteran isolated himself and had depression, anxiety, anger, irritability insomnia, avoidant and defiant behaviors, feelings of guilt and inability to cope with stressful situations. In October 2015, the Veteran was afforded a VA PTSD examination. The examiner diagnosed PTSD and determined the occupational and social impairment to be consistent with occasional decreases in work efficiency. The Veteran recently enrolled in VA mental health care, but did not take any psychotropic medication. However, he continued to consume large quantities of alcohol on a daily basis and was concerned about its medical effects. The examiner recounted how the Veteran's combat stressors met the PTSD criteria. He identified anxiety, chronic sleep impairment and disturbances of motivation and mood as the symptoms. Behavioral observations noted that the Veteran was appropriately groomed and fully oriented. His affect was appropriate to content. There was no evidence of psychosis or suicidal ideation. He noted combat nightmares, anhedonia, insomnia and irritability as prominent PTSD symptoms. He commented that the Veteran reported several instances where he nearly lost his job due to irritable outbursts. The Veteran continued to have problems with coworkers. The examiner also noted that the alcohol use was a means of coping with PTSD symptoms, specifically insomnia. October 2015 VA treatment records showed that the Veteran was distressed with work and planned to retire next year. He was concerned about how he would spend his time in retirement. His wife was concerned about his labile moods. In December 2015, the Veteran had a VA Mental Health (MH) evaluation. He complained about increased anxiety, nightmares and sleep problems. He enjoyed staying busy with work, but had a long commute and stress. He struggled with irritability, depression, social isolation, anhedonia, lethargy, and insomnia. He reported significant alcohol use as a sleep aid. He denied any suicide ideations. He had worked for many years, but had several occasions where he almost lost his job due to anger outbursts. He had very limited leisure activities. He mostly stayed at home and avoided social situations. Mental status examination (MSE) showed the Veteran to present as well dressed, but he had noticeable blinking that he attributed to anxiety. Mood and affect were described as anxious. Thought pattern, thought content, and perception were normal. Insight and judgment were good. The Veteran was fully alert and oriented. The clinician indicated the Veteran had PTSD and depression with worsening symptoms of social anxiety, irritability, depression and sleep problems. He noted the Veteran continued to work, but was having more difficulty with work related stressors. Three medications and psychotherapy were recommended for treatment. February 2016 VA MH records showed that the medication did not improve the Veteran's ability to sleep. He also complained about longstanding concentration difficulties. April 2016 VA treatment records indicate improvement with focus and sleep from medication. He reported being terminated from work. In June 2016, the Veteran reported that his job ended due to his PTSD symptoms. He frequently had conflicts with his boss. He also had concentration problems and difficulty adapting to changed circumstances. He required counseling and medication to treat his severe PTSD symptoms. In November 2016, a treating psychologist completed a Disability Benefits Questionnaire. She confirmed a PTSD diagnosis. She indicated the occupational and social impairment symptoms approximated deficiencies in most areas of function. She listed the following applicable PTSD symptoms: depressed mood, anxiety, panic attack more than once a week, impairment of short and long term memory, flattened affect, impaired judgment, inability to establish and maintain effective relationships, and intermittent inability to perform activities of daily living, among others. In May 2017, VA reexamined the Veteran for PTSD. The examiner diagnosed PTSD, mild neurocognitive disorder with lewy bodies, depressive disorder and obsessive compulsive disorder (OCD). The Veteran demonstrated impaired memory prior to the examination by calling the examiner multiple times about scheduling. He forgot to bring the requested information to session. He reported no longer driving and walking in the neighborhood due to memory issues. The examiner reported that it was not possible to distinguish the symptoms due to each diagnosis because of their overlapping nature. She commented that PTSD symptoms may be further worsened by cognitive decline and mood issues from Parkinson's disease. She indicated the mental disorders were productive of total occupational and social impairment and again confirmed that it was not possible to distinguish the portion attributable to each diagnosis. She listed the following applicable PTSD symptoms: depressed mood, anxiety, impairment of short and long term memory, flattened affect, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals, impaired impulse control, and disorientation to time or place, among others. Behavioral observations showed the Veteran to present as well dressed with a subdued demeanor and flattened affect. He moved somewhat stiffly and exhibited masked facial expressions. He attempted to share his history, but became tangential. He was easily redirected back to the topic. The examiner further noted memory problems ranging from being confused about her office floor location to his inability to correctly repeat a simple phrase. She noted passive suicide ideation and recommended firearm precaution. She believed the symptoms had increased, but the Veteran did not pose an imminent risk to himself. 1. Prior to April 7, 2016 During this period, the frequency, severity and duration of PTSD symptoms more closely approximate deficiencies in most areas of occupational and social function. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. The Board considers the Veteran and his wife's reports to be competent and credible evidence of PTSD symptoms of a greater severity than reflected in the October 2015 VA examination report. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). The severity of PTSD symptoms described by the Veteran and wife suggest that the Veteran had severe irritability problems, sleep disturbances with problematic alcohol use as a coping mechanism, isolative behaviors, among other symptoms. The Board has considered the October 2015 VA examiner's opinion that the PTSD symptoms most closely approximated occasional decreases in work efficiency. This assessment conflicts with additional evidence of longstanding irritability, problematic alcohol use as a coping mechanism, and isolative behaviors indicating a greater severity, frequency and duration of PTSD symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Caluza, 7 Vet. App. at 506. The Board does not find it persuasive to weigh against assignment of a 70 percent initial rating. The Board declines to assign a total rating since the Veteran continued to be employed at this time. During this period, his employment weighs against a finding that symptoms and impairment more nearly approximated total occupational impairment. His difficulties interacting with his supervisor and co-workers prior to leaving work have been considered. However, the fact that he continued to work during this period supports the conclusion that the symptoms and impairment did not more nearly approximate total occupational impairment. 38 C.F.R. § 4.130, DC 9411. The Board notes that the Veteran identified August 24, 2015 as the last day of work in the July 2016 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. However, VA treatment records from December 2015 reflected that the Veteran was employed. March 2016 VA treatment records included the initial report that the Veteran was facing termination at work, and the termination is confirmed in April 7, 2016 notes. In this particular case, the Board finds that April 7, 2016 is the first factually ascertainable date of unemployment. 38 C.F.R. § 3.400. For the above stated reasons, an initial rating of 70 percent prior to April 7, 2016 is warranted for service-connected PTSD. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.7. 2. From April 7, 2016 During this period, the severity, frequency and duration of PTSD symptoms more closely approximated total impairment in occupational and social function. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. The May 2017 VA examiner confirmed that the Veteran had severely impaired memory and concentration due to PTSD symptoms with the onset of Parkinson's disease. She opined that the PTSD severity most resembled total occupational and social impairment. She could not distinguish what portion of psychiatric disability was due to PTSD alone. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). The November 2016 VA examiner indicated that PTSD severity most closely resembled occupational and social impairment with deficiencies in most areas of function. The Board resolves reasonable doubt to find that the total rating criteria for PTSD has been met since the initial April 7, 2016 VA MH report that the Veteran was no longer working. During this period, total occupational impairment is demonstrated. The Board finds the assessment of social function from the November 2016 and May 2017 VA examiners to be in relative equipoise. The evidence is unclear as to when the Veteran's baseline social function changed following April 7, 2016. Resolving reasonable doubt in the Veteran's favor, the Board accepts the May 2017 VA examiner's opinion of total social impairment due to PTSD to apply from April 7, 2016. 38 C.F.R. § 4.3. For the above stated reasons, a rating of 100 percent from April 7, 2016 is warranted for service-connected PTSD. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.7. 3. Additional considerations Neither the Veteran, nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board has considered entitlement to a total disability rating based upon individual unemployability (TDIU) as part of the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The record shows that the Veteran was gainfully employed until March 2016. As explained above, the earliest date it is factually ascertainable that the Veteran was no longer worked is April 7, 2016. For these reasons, substantially gainful employment is demonstrated and entitlement to a TDIU prior to April 7, 2016 is not warranted. From April 7, 2016, the Veteran is now in receipt of a 100 percent rating for PTSD. The Court has held that a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for SMC benefits pursuant to 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). In this particular case, the Veteran is additionally service-connected for numerous disabilities and in receipt of TDIU from July 24, 2016 to December 20, 2016. From December 20, 2016, he is in receipt of special monthly compensation (SMC) at the P-1 rate. 38 U.S.C. § 1114(p). Entitlement to TDIU is rendered moot from July 24, 2016 by the current rating awards. See id. From April 7, 2016 through June 19, 2016, the Veteran is additionally service-connected for diabetes mellitus, 20 percent disabling and tinnitus, 10 percent disabling. There is no indication that these additional service-connected disabilities are productive of unemployability to substantiate an independent TDIU award. Entitlement to TDIU from April 7, 2016 through June 19, 2016 is effectively rendered moot by the total rating award for PTSD in the instant decision. See id. From June 20, 2016, the Veteran is additionally service-connected for Parkinson's disease, right lower extremity impairment, left lower extremity impairment, diabetes mellitus, left sided cranial nerve impairment, and bradykinesia, each rated 20 percent disabling; right sided cranial nerve impairment and tinnitus, each rated 10 percent disabling; and loss of sense of smell and neurogenic bladder, noncompensable. During this period, the Veteran now has a single disability, PTSD, rated as 100 percent and an additional separate and distinct service connected disabilities, rated at least 60 percent disabling. The Veteran now meets the statutory criteria for SMC pursuant to 38 U.S.C. § 1114(s) from June 20, 2016. Entitlement to SMC pursuant to 38 U.S.C. § 1114(s) is now warranted from June 20, 2016. ORDER Prior to April 7, 2016, an initial rating of 70 percent, but no higher, is granted for service-connected PTSD, subject to controlling regulations governing the payment of monetary awards. From April 7, 2016, a rating of 100 percent for service-connected PTSD is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to SMC pursuant to 38 U.S.C. § 1114(s) from June 20, 2016 is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs