Citation Nr: 18106956 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 14-41 424 DATE: June 1, 2018 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD), effective January 31, 2012, is granted. Entitlement to Special Monthly Compensation (SMC) based upon housebound status, effective December 20, 2013, is granted. REMANDED Entitlement to an effective date prior to January 31, 2012 for an increased rating for PTSD is remanded. Entitlement to a TDIU prior to October 17, 2014 is remanded. Entitlement to SMC based upon housebound status prior to December 20, 2013 is remanded. FINDINGS OF FACT 1. For the entire appeal period extending from January 31, 2012, the evidence reflects that the Veteran’s PTSD has been manifested by symptoms that more nearly approximate total occupational and social impairment. 2. Since December 20, 2013, the Veteran had a single service-connected disability ratable at 100 percent and additional service-connected disabilities with combined rating of 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for a schedular evaluation of 100 percent for the service-connected PTSD have been satisfied from January 31, 2012. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for entitlement to SMC based upon housebound status have been satisfied from December 20, 2013. 38 U.S.C. § 1114 (s) (2014); 38 C.F.R. § 3.350 (i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to March 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decision of a Department of Veterans Affairs (VA) Regional Office in October 2012, April 2015, and July 2015. The October 2012 rating decision continued a 50 percent rating decision for PTSD. In July 2015, the Agency of Original Jurisdiction issued a rating decision that granted a 70 percent rating for the Veteran’s PTSD, effective March 26, 2014; and a 100 percent rating for PTSD, effective April 3, 2015. As this grant, however, did not represent a total grant of benefits sought for the entire period on appeal, the Veteran’s claim for a higher initial rating for his PTSD remains pending before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, regarding the Veteran’s claim for entitlement to SMC based upon housebound status prior to April 3, 2015, the Veteran was granted entitlement to SMC based upon housebound status, effective March 26, 2014, in an October 2016 rating decision. As this grant, however, did not represent a total grant of benefits sought for the entire period on appeal, this claim also remains pending before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Entitlement to a rating in excess of 50 percent prior to March 26, 2014 for PTSD; and a rating in excess of 70 percent prior to April 3, 2015 Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505. Here, the Board finds that the Veteran’s symptoms related to his PTSD have not significantly changed throughout the appeal period and a uniform rating is warranted. In January 2012, the Veteran filed for an increased evaluation of his PTSD. The Veteran’s PTSD is rated as 50 percent disabling prior to March 20, 2014, 70 percent disabling from March 20, 2014 to April 3, 2015, and has been assigned a 100 percent rating, thereafter. The Veteran’s disability ratings for PTSD are assigned 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 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 effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. 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. Id. 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. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact 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. In April 2012, the Veteran underwent a VA examination where he was diagnosed with PTSD and Major Depressive Disorder. The examiner opined that while there was some overlap in symptoms it was possible to differentiate between the symptoms attributable to each diagnosis. The examiner noted that the Veteran suffers from symptoms that included: panic attacks more than once per week; flattened affect; disturbances in motivation and mood; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; low energy, vague auditory and visual hallucinations manifested by hearing his name called or seeing flitting images; and confusion and disorientation while driving, such as losing his sense of direction in familiar places. The examiner stated that the Veteran’s PTSD only caused some of his symptoms and that his non-service connected depression caused his depressed mood, suicidal ideation, and fatigue. In March 2014, the Veteran was evaluated by a psychiatric consultant due to his symptoms of sleeplessness, nightmares, anger management issues, irritability, and distance in his family relationships. The examiner noted that the Veteran reports waking up every night sweating and shaking and cannot go back to sleep. The Veteran and his wife report that he is continuously waking her up to ask whether she heard anything or anybody moving around in the house. The Veteran reported problems with his attention, concentration and memory. He loses his way in traffic and is not able to get back on track. These happenings make him very angry and once he gets angry he becomes withdrawn and non-communicative. It is noted that the Veteran has become a recluse, that he wants to stay away from everyone and cannot stand company or community activities. He has also become distrustful of his wife and constantly is asking about her coming and leaving the home. The examiner also noted that the Veteran has developed difficulties managing his personal responsibilities. His ability to maintain his hygiene and personal appearance was reported to be deteriorating. He also reported chronic suicidal thoughts and complained about feeling lonely, unloved, uncared for and that he does not care to be around people and does not care about anything in his life. The examiner noted functional handicaps that include: impaired impulse control, spatial disorientation, personal hygiene and appearance, inability to establish and maintain effective relationships, and significant occupational impairments. In April 2015, the Veteran’s PTSD was evaluated by another VA examiner. The examiner stated that the Veteran suffered from PTSD and major depressive disorder with psychotic features. The examiner stated that the two conditions could not be differentiated from one another as the conditions were “comorbid, share common symptoms and are mutually aggravating.” The examiner noted symptoms that included: near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; inability to establish and maintain effective relationships, suicidal ideation, and persistent delusions and hallucinations. Based on the above, the Board finds that the Veteran’s condition more nearly approximates the criteria for a 100 percent rating since the Veteran filed a claim for an increased rating in January 2012. The evidence shows that the Veteran is socially isolated, including inside his own home. While the Veteran remains married, the Veteran’s psychiatric evaluations demonstrate that the Veteran has no other significant relationships in his life and demonstrates extended periods of withdrawn and non-communicative behavior and unprovoked irritability with periods of violence. Additionally, the Veteran has expressed his thoughts of suicidal ideation and records indicate that his treating psychiatrist asked his wife to remove all guns from the Veteran’s home. Additionally, the Veteran suffers from severe occupational impairment due to his PTSD. The March 2014 examiner noted occupational impairments related to his impaired impulse control, spatial disorientation such as getting lost in familiar environments, neglect of personal hygiene and appearance, and inability to establish and maintain effective relationships. While the 2012 VA examiner indicated that the Veteran’s condition did not cause total social and occupational impairment, the Board notes that the examiner reported similar symptoms reported by the subsequent evaluations of record; however, the 2012 examiner opined that the Veteran’s non-service connected depression could be differentiated from his service-connected PTSD. The Board finds that this evaluation is less probative than the subsequent evaluations as the April 2015 examiner opined that the Veteran’s conditions could not be differentiated from one another as the conditions were “comorbid, share common symptoms and are mutually aggravating.” Based upon the conflicting opinions regarding whether the Veteran’s symptoms of depression can be differentiated from his service-connected PTSD, the Board finds that 2012 opinion regarding the Veteran’s level of impairment to be less probative than the subsequent evaluations as it does not consider all of the Veteran’s symptoms and resulting functional impairment. See Mittleider v. West, 11 Vet. App. 181 (1998), (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). Accordingly, the Board finds that the evidence of record reflects that the symptoms and overall impairment caused by the Veteran’s PTSD have throughout the pendency of the claim more nearly approximated total social and occupational impairment. Entitlement to SMC prior to March 26, 2014 As noted above a grant of SMC was made under 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i) on the basis of a single service-connected disability (PTSD) ratable at 100 percent and additional service-connected disabilities with combined rating of 60 percent or more, effective April 3, 2015 in a July 2015 rating decision. In an October 2016 rating decision, SMC based upon housebound status was granted, effective March 26, 2014. Based upon the grant of entitlement to 100 percent rating for PTSD, effective January 31, 2012, the Board finds that the Veteran has sufficient additional disabilities from December 20, 2013 that equal 60 percent or more when combined under the Combined Rating Table (38 C.F.R. § 4.25); accordingly, the Board finds that SMC under 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i) is warranted from December 20, 2013. REASONS FOR REMAND Entitlement to an effective date prior to January 31, 2012 for PTSD is remanded. The Board notes that in July 2015 the Veteran was granted entitlement to an increased rating for PTSD. The Veteran was granted a 70 percent rating for the Veteran’s PTSD, effective March 26, 2014; and a 100 percent rating for PTSD, effective April 3, 2015. While an increased rating for PTSD was already on appeal (and has been adjudicated by the Board in this decision), the Veteran filed an NOD regarding the effective date assigned for the increase. Specifically, the Veteran (through his attorney) has argued that an effective date of September 7, 2004 would be appropriate. The Veteran has not been provided a statement of the case with regard to this issue. Because the Veteran has filed a notice of disagreement with regard to the above issue, the issuance of a statement of the case is required. 38 C.F.R. § 19.9 (c) (2017); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Entitlement to a TDIU prior to October 17, 2014 and Entitlement to SMC prior to December 20, 2013 are remanded. The Board finds that the issues of entitlement to a TDIU prior to October 17, 2014 and entitlement to SMC prior to December 20, 2013 are inextricably intertwined with the remanded issue of entitlement to an earlier effective date for the Veteran’s entitlement to an increased rating for PTSD. If the Veteran is granted an earlier effective date for his claim for PTSD, this could impact whether the Veteran meet the criteria for both TDIU and SMC at an earlier date. Accordingly, the Board remands the Veteran’s claim for a TDIU prior to October 17, 2014 and SMC prior to December 20, 2013. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to an earlier effective date for an increased rating for PTSD prior to January 31, 2012. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. (Continued on the next page)   2. After any other necessary development, readjudicate the Veteran’s claims on appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond, after which the matter should be returned to the Board for further adjudication, if otherwise in order. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel